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DUE PROCESS AND IMMIGRANT
DETAINEE PRISON TRANSFERS:
MOVING LPRS TO ISOLATED PRISONS
VIOLATES THEIR RIGHT TO COUNSEL
César Cuauhtémoc García Hernández*
The planes and buses are loaded up with immigrant detainees every
day, and we are shipped from New York to the South like cargo.
1
– Malik Ndaula
*
*
*
Although the overwhelming majority of individuals detained in immigration
prisons are transferred from one prison to another, their relocation, this article
suggests, frequently violates the Fifth Amendment‘s due process right to counsel for
lawful permanent residents (LPRs). Most LPR detainees spend their days awaiting a
decision on their removability while confined in the nation‘s largest detention
centers, which are located in remote regions of Arizona, Georgia, and Texas. In these
areas, there are very few attorneys willing to represent detained immigrants and
detainees are isolated from social networks that could help them tap legal resources
to put up a credible defense.

I. INTRODUCTION
The story of Nelson Gandarillas-Zambrana, a troubled young man, is a
2
common one. As a teenager he developed a drinking problem, and like many who
develop drinking problems, it led him to make a series of bad decisions, some of
which landed him in jail for short stints. From when he was 19 to 27 years old he
* CÉSAR CUAUHTÉMOC GARCÍA HERNÁNDEZ is an assistant professor at Capital University Law School.
Previously, he worked as an immigration attorney at the Law Offices of Raúl García & Associates.
Thanks to Kim Chanbonpin and others who provided comments at the Midwest People of Color
Conference; Tamara Piety, Lyn Entzeroth, Patience A. Crowder, Vicki Limas, Marla Mansfield, Elizabeth
McCormick and the other faculty at the University of Tulsa who attended my colloquium there; Jessica
Knouse, who organized the Ohio Legal Scholarship Workshop at the University of Toledo, and Thaddeus
Hoffmeister, who commented on my paper there; Jennifer Kreder and the faculty of the Northern
Kentucky University Chase College of Law who attended my presentation; and Ernesto Hernández-López.
All provided invaluable feedback. Special thanks to Margaret B. Kwoka who listened to the ideas
contained in this project from their earliest stages. César also writes crImmigration.com, a blog about the
convergence of criminal law and immigration law.
1. Malik Ndaula & Debbie Satyal, Rafiu’s Story: An American Immigrant Nightmare, in
KEEPING OUT THE OTHER: A CRITICAL INTRODUCTION TO IMMIGRATION ENFORCEMENT TODAY 241, 277
(David C. Brotherton & Philip Kretsedemas eds., 2008).
2. See Gandarillas-Zambrana v. B.I.A., 44 F.3d 1251, 1256 (4th Cir. 1995).

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was convicted of several misdemeanors, including two petit larceny offenses.
Gandarillas-Zambrana was under the influence of alcohol at the time that he
4
committed many of these offenses. He struggled to break free from his addiction. At
one point, he was even thrown out of a three-month alcohol treatment program after
5
just one month for failing a Breathalyzer test. Clearly, this young man had
problems.
Eventually, Gandarillas-Zambrana started to turn his life around. He
completed an alcohol rehabilitation program, remained sober, completed a vocational
6
training course, and secured a steady job. He helped his disabled mother by giving
her $8,000 for a down payment on a house in the Virginia suburbs of Washington,
7
D.C. and by helping her pay the mortgage. He also joined a non-profit dance troupe
and started volunteering at Georgetown University Law Center‘s Street Law
8
program. After a rough transition to adulthood, it seemed that life was finally
looking better for Gandarillas-Zambrana. Then the harsh realities of immigration law
settled in.
9
Gandarillas-Zambrana was born in Bolivia. He lived there until he was 15
10
years old. In 1981, he entered the United States as a lawful permanent resident
11
(LPR). Eventually the rest of his family came to the United States too—his four
12
13
brothers, two sisters, and mother. No family remained in Bolivia. Given his
troubled late teens and twenties, it was only a matter of time before the Immigration
and Naturalization Service (INS) caught up with him. In 1993, the INS decided that
Gandarillas-Zambrana‘s two petit larceny offenses, one in 1988 and another in 1991,
14
rendered him deportable. INS agents arrested him in the Washington, D.C.
metropolitan area and sent him to a prison in Arlington, Virginia—not far from his
family or the law students and lawyers he had met through Georgetown‘s Street Law
15
program.
Although his arrest by INS agents marked a poor turn of events, things soon
turned even worse for him. Instead of awaiting his fate near family and friends,
Gandarillas-Zambrana was transferred to Oakdale, Louisiana, more than 1,000 miles
16
17
away. At the time, Oakdale had a population of approximately 6,832. After the
Immigration Judge advised Gandarillas-Zambrana that he had the right to counsel at
his own expense, he searched fruitlessly to find an attorney who would take his

3. See id. at 1253.
4. See id. at 1254.
5. See id.
6. See id.
7. See id.
8. See id.
9. See id.
10. See id.
11. See id.
12. See id.
13. See id.
14. See id. at 1253-54.
15. See Amanda Masters, Case Comment, Is Procedural Due Process in a Remote Processing
Center a Contradiction in Terms? Gandarillas-Zambrana v. Board of Immigration Appeals, 57 OHIO
STATE L.J. 999, 1001, 1016 (1996).
16. See Gandarillas-Zambrana, 44 F.3d at 1256; Masters, supra note 15, at 1001.
17. U.S. Census Bureau, 2008 Population Estimates, Census 2000, 1990 Census, (providing
data from 1990 and 2008). Oakdale has grown by approximately 1,300 residents since then. See id.

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case. His deportation proceeding continued pro se whereby the Immigration Judge
19
questioned him and ultimately ordered that Gandarillas-Zambrana be deported.
Had he remained near his family, friends, and familiar support networks in
northern Virginia, it is possible that events would have turned out differently for
Gandarillas-Zambrana. Perhaps he would have had someone to advocate on his
behalf. Perhaps someone would have elicited positive information. As the Fourth
Circuit explained, it would have been ―preferable‖ for the immigration judge to have
elicited positive information because Gandarillas-Zambrana was unrepresented
whereas the government was ably represented by a Department of Homeland
20
Security (DHS) staff attorney.
Gandarillas-Zambrana‘s story is only remarkable in that the lengthy
litigation he pursued left a detailed record of exactly what happened to him, but his
21
story of transfer to a location far from his home is not unique. For instance, after a
highly-publicized 2007 raid in the former fishing town of New Bedford,
Massachusetts, the Immigration and Customs Enforcement (ICE) agency—the DHS
division that assumed immigration policing responsibilities from INS—quickly
transferred approximately 200 of the 361 detainees to immigration prisons in Texas
22
and New México. In another such case, Enrique Ballesteros, an LPR of thirteen
23
years, was detained in Idaho, near his home, and transferred to Colorado. Many
24
other immigrants could be added to this list.
Analyzing data obtained from ICE through a Freedom of Information Act
request, the non-governmental organization Human Rights Watch (HRW) reported
that ―between 1999 and 2008, ICE made 1,397,339 transfers of immigrants between
25
detention facilities.‖ These data, disaggregated, indicate that transfers occur with
much greater frequency today than they did a decade ago. In the 1999 fiscal year, for
26
example, 74,329 transfers occurred. In the 2007 fiscal year, that number jumped to
261,941—partly as a result of an increase in the number of detainees during that

18. Masters, supra note 15, at 1016.
19. See id.
20. See Gandarillas-Zambrana, 44 F.3d at 1257.
21. See, e.g., Gandarillas-Zambrana v. B.I.A., 516 U.S. 806 (1995) (denial of petition for writ
of certiorari); Gandarillas-Zambrana v. B.I.A., Petition for Writ of Certiorari, 1995 WL 17047617 (U.S.
1995); Gandarillas-Zambrana, 44 F.3d at 1251; Gandarillas-Zambrana v. INS, Petitioner‘s Reply Brief,
1994 WL 16049742 (4th Cir. 1994); Gandarillas-Zambrana v. INS, Respondent‘s Brief, 1994 WL
16049740 (4th Cir. 1994); Gandarillas-Zambrana v. INS, Petitioner‘s Brief, 1994 WL 16049741 (4th Cir.
1994).
22. Memorandum from Laura Rótolo, ACLU of Mass. to Dr. Santiago Canton, Executive
Sec‘y, & Mr. Mark Fleming, Inter-American Comm‘n on Human Rights 4 (July 20, 2009) [hereinafter
Rótolo Memorandum].
23. See Ballesteros v. Ashcroft, 452 F.3d 1153, 1155 (10th Cir. 2006).
24. The term ―immigrant‖ has a highly specific definition under the Immigration and
Nationality Act (INA) that does not comport with the term‘s colloquial meaning. Section 101(a)(15) of the
INA defines ―immigrant‖ as ―every alien except an alien who is within one of the following classes of
nonimmigrant aliens . . .‖ INA § 101(a)(15). The INA then identifies twenty-four classes of
nonimmigrants, including tourists, students, fiancées of United States citizens, and some high-skilled
workers. See INA §§ 101(a)(15)(B)(2), (F), (K), and (L). In contrast, in this article I use ―immigrant‖ as it
is defined colloquially as ―one who or that which immigrates.‖ WEBSTER‘S ENCYCLOPEDIC UNABRIDGED
DICTIONARY OF THE ENGLISH LANGUAGE 712 (new rev. ed. 1996).
25. HUMAN RIGHTS WATCH, LOCKED UP FAR AWAY: THE TRANSFER OF IMMIGRANTS TO
REMOTE DETENTION CENTERS IN THE UNITED STATES 29 (2009) [hereinafter LOCKED UP FAR AWAY].
26. Id. at 29 tbl. 1.

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time. Since some individuals are transferred more than once, HRW concluded that
it could not determine precisely what percentage of the detained population was
28
transferred. The DHS Inspector General, however, explained that in the 2007 fiscal
year ―ICE detained more than 311,000 aliens . . . and transferred 261,910 detainees
from one detention facility to another,‖ suggesting that approximately 84 percent of
29
detainees were transferred. Despite this slight variation between HRW and the
DHS Inspector General, the almost 262,000 transfers—in light of the more than
311,000 individuals detained—represent a significant percentage of the total number
30
of individuals detained that year. The large number of transfers reflects ICE‘s vast
detention apparatus. ICE has approximately 32,000 beds at its disposal throughout
the country, and on any given day in the 2007 fiscal year more than 30,000 of those
31
could be expected to be filled. Many of these facilities are located in rural,
32
geographically isolated locations, often near the Mexican border.
33
ICE‘s use of rural, geographically isolated prisons to house immigration
27. Id.; see Dep‘t of Homeland Security, Office of Inspector Gen., Immigration and Custom
Enforcement’s Tracking and Transfers of Detainees, March 2009, at 2 [hereinafter ICE’s Tracking and
Transfers]. HRW reported that the following number of transfers occurred between 2000 and 2008:
98,752 (2000), 94,209 (2001), 102,950 (2002), 122,783 (2003), 136,045 (2004), 151,457 (2005), and
175,088 (2006). LOCKED UP FAR AWAY, supra note 25, at 29 tbl. 1.
28. HRW recognizes this limitation in its methodology. See LOCKED UP FAR AWAY, supra
note 25, at 29. This evidence of multiple transfers conforms to my own experience speaking with
individuals who had been channeled through several immigration prisons.
29. See ICE’s Tracking and Transfers, supra note 27, at 2.
30. See id.
31. See id.
32. Id.at 3; Press Release, Org. of Am. States: Inter-American Comm‘n on Human Rights,
IACHR
Visits
U.S.
Immigration
Detention
Facilities
(July
28,
2009),
http://www.cidh.oas.org/Comunicados/English/2009/53-09eng.htm [hereinafter IACHR Visits Detention
Facilities]. On its website, ICE provides a list of all its detention facilities. U.S. Immigration and Customs
Enforcement,
Detention
and
Removal:
Immigration
Detention
Facilities,
http://www.ice.gov/pi/dro/facilities.htm (last visited Sept. 2, 2009). Others have described many of these
facilities as ―rural‖. See, e.g., Andres Viglucci, U.S. Immigration: Lemorin Acquitted in Liberty City Seven
Case, Now Caught in Immigration Lockup Limbo, MIAMI HERALD, Sept. 18, 2008, at L1 (discussing ―an
immigration detention center in rural Georgia‖); Frances Frank Marcus, Prison for Aliens Opens in
Louisiana, N.Y. TIMES, April 9, 1986, at A14 (describing the region where the Oakdale, LA immigration
prison is located as an ―isolated rural region‖).
33. I prefer to use ―prison‖ rather than the official terminology of ―detention center‖ to
describe the enclosures in which immigrant detainees are held. Community activists Subhash Katel and
Aarti Shahi explained their emphasis on the lived reality of immigration detention in a manner with which
I agree:
Some would take issue with the term prison, because it is legally incorrect; in the
eyes of the law, these prisoners are civil detainees. But the inmates are compelled to
enter and stay. They sleep in dorms arranged body to body. They ask permission to
go to the bathroom. Their hands, feet, and waists are shackled when they are moved
from place to place. In other words, they are prisoners.
Subhash Kateel & Aarti Shahani, Families for Freedom: Against Deportation and Delegalization, in
KEEPING OUT THE OTHER: A CRITICAL INTRODUCTION TO IMMIGRATION ENFORCEMENT TODAY, supra
note 1, at 258, 263.
The Supreme Court expressed a similar sentiment with regard to facilities where juveniles are
detained. In In Re Gault, the Court wrote:
The boy is committed to an institution where he may be restrained of liberty for
years. It is of no constitutional consequence - and of limited practical meaning - that
the institution to which he is committed is called an Industrial School. The fact of
the matter is that, however euphemistic the title, a ―receiving home‖ or an
―industrial school‖ for juveniles is an institution of confinement in which the child

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detainees presents a number of troubling consequences. By their nature, these locales
are far from the places where the vast majority of LPRs lived prior to being detained
34
and where their families continue to make their homes. Many immigrants, such as
Gandarillas-Zambrana, the New Bedford detainees, and Ballesteros, are moved many
thousands of miles away from any social support networks that they had in their
35
residential communities. The limited number of people residing in these isolated
locales also means that there is a limited pool of potential prison employees. Some
36
prisons, as a result, have difficulty hiring and retaining qualified staff. Though
these are all worrisome effects, worthy of critical discussion, this article addresses
one consequence of immigrant detainee prison transfers and its constitutional
reverberations.
Countless
detainees,
immigration
attorneys,
non-governmental
organizations, courts, and other commentators have noted the common-sense
37
conclusion that isolated prisons result in reduced access to legal counsel. In a 2008
meeting with ICE officials, representatives of the American Immigration Lawyers
Association (AILA), the nation‘s largest immigration bar association, explained:
is incarcerated for a greater or lesser time. His world becomes ―a building with
whitewashed walls, regimented routine and institutional hours . . . Instead of mother
and father and sisters and brothers and friends and classmates, his world is peopled
by guards, custodians, state employees, and ‗delinquents‘ confined with him for
anything from waywardness to rape and homicide.‖
387 U.S. 1, 27 (1967) (internal citations omitted).
I could not agree more. Most pertinently, in an important due process case arising in the
immigration context, the Supreme Court described detention as ―imprisonment.‖ See Zadvydas v. Davis,
533 U.S. 678, 695 (2001). The Court‘s chosen locution suggests that it was concerned with the lived
reality of the individuals whose circumstances it addressed in Zadvydas.
34. Rótolo Memorandum, supra note 22, at 4. According to data compiled by DHS, ―The
leading metropolitan areas of residence for new LPRs in 2008 were New York-Northern New Jersey-Long
Island, NY-NJ-PA (16 percent) and Los Angeles-Long Beach-Santa Ana, CA (8.7 percent). Other
prominent locations included Miami-Fort Lauderdale-Pompano Beach, FL, Washington-ArlingtonAlexandria, DC-VA-MD-WV, and Chicago-Naperville-Joliet, IL-IN-WI. These five metropolitan areas
accounted for the residence of 40 percent of new LPRs in 2008.‖ Randall Monger and Nancy Rytina, U.S.
Legal
Permanent
Residents:
2008,
5
(March
2009),
http://www.dhs.gov/xlibrary/assets/statistics/publications/lpr_fr_2008.pdf. The DHS data suggest that this
can also be said of 2006 and 2007. See id. at 5 tbl. 5. Only one of the ten largest immigration prison
housing is located near one of these five metropolitan areas—the Mira Loma Detention Center is located
in Los Angeles County. See Ford Fessenden, Immigration Detention Centers, N.Y. TIMES, Feb. 23, 2010,
http://www.nytimes.com/interactive/2010/02/23/nyregion/20100223-immig-table.html.
35. See LOCKED UP FAR AWAY, supra note 25, at 53-54.
36. IACHR Visits Detention Facilities, supra note 32.
37. See, e.g., Demore v. Kim, 538 U.S. 510, 554 (2003) (Souter, J., concurring in part and
dissenting in part) (lamenting the INS‘s power to ―detain, transfer, and isolate aliens away from their
lawyers, witnesses, and evidence‖); Chlomos v. INS, 516 F.2d 310, 313-14 (3d Cir. 1975) (―[P]etitioner‘s
difficulty in securing his lawyer‘s presence at the hearing was complicated by the fact that the government
chose to have the hearing in Florida rather than in New Jersey.‖); LOCKED UP FAR AWAY, supra note 25,
at 29 (―Almost invariably, there are fewer prospects for finding an attorney in the remote locations to
which they [detained immigrants] are transferred.‖); Margaret H. Taylor, Promoting Legal Representation
for Detained Aliens: Litigation and Administrative Reform, 29 Conn. L. Rev. 1647, 1651 (1997)
(―[T]hrough incarceration the government significantly curtails their access to counsel. INS detainees are
often confined at remote facilities…Those who have ties to a particular community, or at least some hope
of obtaining representation in the place where they are initially apprehended, may nevertheless be
transferred across the country to an isolated location.‖); Rótolo Memorandum, supra note 22, at 4 (―Once
detainees are moved far from their places of residence, they may lose contact with attorneys representing
them in their cases. In-person visits may become impossible and phone calls may become prohibitively
expensive.‖).

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―The transfers also make representing individuals exceptionally difficult, particularly
when an immigration judge refuses to allow telephonic bond or [m]aster calendar
38
hearings, and many attorneys are now refusing to take detained cases.‖ One former
immigration detainee explained his perspective similarly: ―[F]ew immigrants
actually get an attorney, and even those who have an attorney have a hard time
providing them with useful information and documents while they are being bounced
39
from prison to prison around the country.‖
Immigration detention transfers are extremely common today and are rooted
in the executive branch‘s discretionary authority, which was established over the past
few decades. Section 241(g) of the Immigration and Nationality Act (INA) provides:
―The Attorney General shall arrange for appropriate places of detention for aliens
40
detained pending removal or a decision on removal.‖ This provision was
41
incorporated into immigration law in 1952 and has not materially changed since—
42
although the Secretary of Homeland Security now carries discretionary authority.
Federal courts have consistently held that § 241(g) grants the executive branch
43
almost limitless authority to house detainees wherever the government sees fit.
This article does not question the executive branch‘s statutory authority to
identify appropriate places of detention for individuals pending removal proceedings.
Rather, it challenges the constitutional limits on the Secretary of Homeland
Security‘s statutory authority to transfer LPR detainees from one location to
44
another. In particular, the article focuses on LPRs who are apprehended in or near
38. AILA-ICE Liaison Meeting Minutes (May 30, 2008), AILA InfoNet Doc. No. 08121820,
at 3.
39. Ndaula, supra note 1, at 277; see Peter L. Markowitz, Barriers to Representation for
Detained Immigrants Facing Deportation: Varick Street Detention Facility, a Case Study, 78 FORDHAM
L. REV. 541, 556 (2009).
40. INA § 241(g), 8 U.S.C. §1231(g)(1)(2006).
41. See Immigration and Nationality Act, Pub. L. 82-414, ch. 477, § 242(c). The 1952 Act
provided: ―The Attorney General is hereby authorized and directed to arrange for appropriate places of
detention for those aliens whom he shall take into custody and detain under this section.‖ Id.
42. In 2002, immigration responsibilities, including detention and removal, were transferred
from the Immigration and Naturalization Service, which was abolished, to the newly created Department
of Homeland Security. Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, 6 U.S.C. §
441; see DAVID WEISSBRODT & LAURA DANIELSON, IMMIGRATION LAW AND PROCEDURE IN A
NUTSHELL § 3-3 (2005). The duties previously delegated to the INS are now divided among three DHS
units—ICE, Customs and Border Protection (CBP), and Citizenship and Immigration Services (CIS)—
with immigration law enforcement obligations tasked to ICE and CBP. See AUSTIN T. FRAGOMEN, JR.,
CAREEN SHANNON, & DANIEL MONTALVO, IMMIGRATION LEGISLATION HANDBOOK § 6:3. While CBP
primarily focuses on border interdiction of people and goods, ICE is primarily concerned with the
country‘s interior. See FRAGOMEN ET AL, supra, at § 6:5. One subunit within ICE, the Office of Detention
and Removal Operations, ―manages the detention of foreign nationals…, as well as the execution of final
removal orders….‖ Id.
43. See, e.g., Avramenkov v. INS, 99 F Supp. 2d 210, 213 (D. Conn. 2000); Comm. of Central
Am. Refugees v. INS, 682 F. Supp. 1055, 1064 (N.D. Cal. 1988).
44. In examining this sliver of the expansive immigration detention apparatus, I heed Daniel
Kanstroom‘s suggestion to turn the immigration scholar‘s eye toward the aspects of immigration law that
impact immigrants most directly. Cf. Daniel Kanstroom, Surrounding the Hole in the Doughnut:
Discretion and Deference in U.S. Immigration Law, 71 TUL. L. REV. 703, 707 (1997) (arguing that while
much of immigration law scholarship focuses on the plenary power doctrine, ―[t]here are surprisingly few
instances in contemporary, real-life immigration practice in which the plenary power doctrine, as such, has
a dispositive bite.‖). Accordingly, this article relies heavily on decisions of the Board of Immigration
Appeals, federal district courts, and the federal courts of appeal. In doing so, I explore current transfer
policy in light of existing due process jurisprudence, rather than challenge the wisdom of that
jurisprudence.

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urban enclaves and transferred to isolated immigration prisons far from their homes.
Moving immigration detainees from densely populated urban areas, where they live
and are initially detained by ICE, to distant rural outposts that are geographically
isolated subverts the fundamental principles of justice that are the foundation of Fifth
Amendment due process protections.
This article explores this constitutional infirmity in detail and presents
potential remedies. Part II sets forth the relevant due process jurisprudence that
guides courts reviewing immigration-related procedures and explains the current
DHS transfer policy and how it operates in practice. Part III then engages in a
45
detailed discussion of the procedural due process implications of this transfer
policy. Finally, Part IV offers several possibilities for limiting the ability of DHS to
continue violating the due process rights of LPRs. This section presents options for
detaining fewer people and keeping those who are detained closer to the places they
have come to call home.

II. THE DUE PROCESS CLAUSE AND ITS APPLICATION TO IMMIGRATION
DETAINEES
A. Evolution of Due Process Jurisprudence
The Due Process Clause of the Fifth Amendment has a long and rich history
politically and jurisprudentially. Its conceptual origins appear to date back to the
46
1215 Magna Carta. The origins of ―due process‖ as legal rhetoric stretch back to
fourteenth century England when Edward III promulgated a law that provided, ―[n]o
man, of whatever estate or condition he be, shall be put out of land or tenement, nor
taken nor imprisoned, nor disinherited, nor put to death, without being brought in
47
answer by due process of law.‖ Many centuries later, influenced as they were by
English legal traditions, the Constitution‘s framers incorporated due process
48
protections into our own nation‘s Constitution. At the time that the Fifth
Amendment was proposed and ratified in 1791, nine states included some variation
49
of the Due Process Clause in their constitutions. By the close of the nineteenth

45. The Due Process Clause also provides substantive limits on governmental action. See
Reno v. Flores, 507 U.S. 292, 301-02 (1993) (discussing substantive due process protections); id. at 306
(discussing procedural due process protections). Substantive due process is, however, beyond the scope of
this article.
46. See Stephen F. Williams, “Liberty” in the Due Process Clauses of the Fifth and
Fourteenth Amendments: The Framers’ Intentions, 53 U. COLO. L. REV. 117, 120 (1981).
47. Williams, supra note 46, at 121 (quoting 28 Edw. 3, c. 3 (1354)).
48. Louise Weinberg writes that the framers accepted the Due Process Clause without
changing James Madison‘s draft. See Louise Weinberg, Overcoming Dred: A Counterfactual Analysis, 24
CONST. COMMENT. 733, 760 (2007). Weinberg speculates that the framers accepted the Clause so readily
because ―the words were already traditional boilerplate. The Due Process Clause probably would have
conveyed to an observer at the time no more than a traditional expression of the fundamental right of
Englishmen, or free men, to trial before punishment, according to the law of the land.‖ Id. Jerry L.
Mashaw adds, ―In England and the colonies it was well understood that ‗due process of law‘ meant
according to the ‗common law‘ (which included legislation), and that, as ‗life, liberty, or property‘
suggest, both criminal and civil processes were subject to the due process constraint.‖ JERRY L. MASHAW,
DUE PROCESS IN THE ADMINISTRATIVE STATE 1 (1985).
49. Williams, supra note 45, at 121 n.26. Just over half a century later, Justice Benjamin
Curtis, in a foundational 1855 decision, provided an extensive historical discussion of the Clause‘s
English origins in upholding a federal statute that allowed ejectment by distress warrant. See Dem ex dem.

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century, at least twenty-eight state constitutions included a comparable clause.
Today, the Fifth Amendment Due Process Clause has been interpreted as
51
imposing limits on the procedures through which governmental action may operate.
As a whole, ―discourses on due process . . . are inextricably tied to the way that
52
justice is defined in liberal, democratic societies.‖ In its procedural form, the
Clause is regarded as a guarantee of the ―fundamental fairness‖ of governmental
53
proceedings.
―Fundamental fairness,‖ of course, has no readily apparent
54
definition. The meaning, as Justice Potter Stewart noted for the majority of the
55
Supreme Court, ―can be as opaque as its importance is lofty.‖
For the Due Process Clause to actually protect fundamental fairness, the
Clause has been interpreted, at its base, to require the opportunity to be heard by an
adjudicative authority. The Supreme Court‘s most defining due process decision of
the twentieth century, Mathews v. Eldridge, provides in no uncertain terms: ―The
fundamental requirement of due process is the opportunity to be heard ‗at a
56
meaningful time and in a meaningful manner.‘‖ Indeed, Justice Felix Frankfurter
once described ―the right to be heard before being condemned to suffer grievous loss
of any kind‖ as ―a principle basic to our society‖ whether or not the affair involved
57
―the stigma and hardships of a criminal conviction.‖
Moreover, under Eldridge, the adjudicative procedure itself must meet
certain fairness standards. In Eldridge, the Supreme Court was presented with the
question of whether the Fifth Amendment‘s Due Process Clause requires an
evidentiary hearing prior to the termination of an individual‘s Social Security
58
disability benefits payment. The Court ultimately decided that an evidentiary
hearing is not required, but that the Due Process Clause does require some type of
59
pre-termination hearing. According to the Court, ―[t]he essence of due process is
the requirement that ‗a person in jeopardy of serious loss (be given) notice of the
60
case against him and opportunity to meet it.‘‖

Murray v. Hoboken Land & Imp. Co., 59 U.S. 272, 285 (1855).
50. See Charles E. Shattuck, The True Meaning of the Term “Liberty” in Those Clauses in the
Federal and State Constitutions Which Protect “Life, Liberty, and Property”, 4 HARV. L. REV. 365, 368
(1891).
51. In Barron v. City of Baltimore, Chief Justice John Marshall announced, ―the fifth
amendment must be understood as restraining the power of the general government, not as applicable to
the states.‖ 32 U.S. 243, 247 (1833). The Fourteenth Amendment would later extend this protection
against the states. U.S. CONST. amend. XIV, § 1.
52. Kretsedemas & Brotherton, Open Markets, Militarized Borders?: Immigration
Enforcement Today, in KEEPING OUT THE OTHER: A CRITICAL INTRODUCTION TO IMMIGRATION
ENFORCEMENT TODAY, supra note 1, at 241, 277.
53. See Lassiter v. Dep‘t. of Soc. Serv.‘s, 452 U.S. 18, 24-25 (1981).
54. Id. Joel M. Gora, perhaps too glibly, described the lack of a clear definition by writing,
―For what was ‗fundamental‘ this year to one justice might not be ‗fundamental‘ next year to another.‖
JOEL M. GORA, DUE PROCESS OF LAW 10 (1977).
55. See Lassiter, 452 U.S. at 24-25.
56. Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S.
545, 552 (1965)).
57. See Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168 (1951)
(Frankfurter, J., concurring).
58. Eldridge, 424 U.S. at 323.
59. See id. at 333, 349.
60. Id. at 333, 348 (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123,
171-72 (1951)).

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In reaching this conclusion, the Court identified several key principles that
control due process considerations and that are applicable in the context of
deportation proceedings. First, the Court noted the conceptual framework in which to
examine governmental proceedings in light of the Due Process Clause. The Court
explained that ―[d]ue process, unlike some legal rules, is not a technical conception
with a fixed content unrelated to time, place and circumstances. . . . [D]ue process is
flexible and calls for such procedural protections as the particular situation
61
demands.‖ That is, due process analysis must be driven by an appreciation of the
specific circumstances in which claims that the Due Process Clause has been
violated arise. No ―one-size-fits-all‖ procedure is required by the Court‘s
interpretation. Rather, ―[a]ll that is necessary is that the procedures be tailored, in
light of the decision to be made, to the ‗capacities and circumstances of those who
are to be heard,‘ to insure that they are given a meaningful opportunity to present
62
their case.‖ To assist courts in reviewing a particular governmental procedure, the
Eldridge Court expressed its now familiar three-pronged balancing test:
First, the private interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute procedural safeguards; and
finally, the Government‘s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement would
63
entail.
Under this rubric, courts are charged with determining solely whether the
challenged governmental procedure meets a minimal standard of fairness and not
with identifying ideal or even preferred procedures.
B. Modern Due Process Jurisprudence Meets Modern Immigration Law
The application of procedural due process, which developed outside the
context of immigration law, to immigration proceedings was for many years
anything but self-evident. Since the late nineteenth century, courts have considered
64
immigration regulations in light of the plenary power doctrine, a peculiar judicial
creation that lends virtually unparalleled deference to the political branches of the
65
federal government in immigration matters. Though much criticized by courts and
61. Eldridge, 424 U.S. at 333-34 (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895
(1961) and Morrissey v. Brewer, 408 U.S. 471, 481 (1972)) (internal quotation marks omitted).
62. Eldridge, 424 U.S. at 349 (quoting Goldberg v. Kelly, 397 U.S. 254, 268-69 (1970)).
63. Id. at 333, 335.
64. Charles D. Weisselberg describes the plenary power, at least in the immigration context,
as:
[A] collection of several separate but related principles: first, that the immigration
authority is reposed in the federal government and not the states; second, that the
authority is allocated in some fashion between the executive and legislative
departments of the federal government; and, third, that the judicial branch has an
extremely limited role in reviewing the executive‘s immigration decisions if,
indeed, the judiciary may review those decisions at all.
Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons from the Lives of Ellen Knauff
and Ignatz Mezei, 143 U. PA. L. REV. 933, 939 (1995).
65. See NATSU TAYLOR SAITO, FROM CHINESE EXCLUSION TO GUANTÁNAMO BAY: PLENARY
POWER AND THE PREROGATIVE STATE 5 (2007); Adam B. Cox, Immigration Law’s Organizing
Principles, 157 U. PA. L. REV. 341, 346 (2008); see also Susan M. Akram & Kevin R. Johnson, Race,
Civil Rights, and Immigration Law After September 11, 2001: The Targeting of Arabs and Muslims, 58

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scholars, and for some time thought to be in decline, the plenary power doctrine
67
remains a cornerstone of immigration law jurisprudence.
Due to the influence of the plenary power doctrine on immigration law,
early immigration cases suggested that the Due Process Clause did not reach
68
exclusion proceedings. As Justice Sherman Minton famously announced in Knauff
v. Shaughnessy, a case concerning the exclusion at a port of entry of a World War II
69
veteran‘s wife for reasons that turned out to be anything but legitimate, ―[w]hatever
the procedure authorized by Congress is, it is due process as far as an alien denied
70
entry is concerned.‖ Under Knauff‘s reasoning, the fairness of the procedure is not
even a secondary concern. Fairness is effectively jettisoned in favor of extreme
deference to Congress. Indeed, only three years later Justice Robert H. Jackson,
recently returned from his responsibilities at the Nuremburg trials, presented two
powerful hypothetical situations:
Because the respondent has no right of entry, does it follow that he
has no rights at all? Does the power to exclude mean that exclusion
may be continued or effectuated by any means which happen to
seem appropriate to the authorities? It would effectuate his
exclusion to eject him bodily into the sea or to set him adrift in a
rowboat. Would not such measures be condemned judicially as a
deprivation of life without due process of law? Suppose the
authorities decide to disable an alien from entry by confiscating his
valuables and money. Would we not hold this a taking of property

N.Y.U. ANN. SURV. AM. L. 295, 329 (2002).
66. For a sampling of articles discussing the potential decline of the plenary power doctrine,
see, e.g., Peter J. Spiro, Explaining the End of Plenary Power, 16 GEO. IMMIGR. L.J. 339, 339 (2002)
(―Two decisions from the 2000 Term, Nguyen v. INS [, 533 U.S. 53 (2001),] and Zadvydas v. Davis, [533
U.S. 678 (2001)] point the way to the abandonment of plenary power.‖); Gabriel J. Chin, Is There a
Plenary Power Doctrine? A Tentative Apology and Prediction for Our Strange but Unexceptional
Constitutional Immigration Law, 14 GEO. IMMIGR. L.J. 257, 259 (2000) (arguing, ―The plenary power
cases use strong language in support of the idea that Congress can do what it wants, but they may be
largely dicta. Deference to discriminatory immigration classifications when domestic constitutional law
would permit such discrimination against citizens does not imply deference when there is a domestic rule
against discrimination on that basis.‖).
67. See Keith Aoki & Kevin R. Johnson, Latinos and the Law: Cases and Materials: The
Need for Focus in Critical Analysis, 12 HARV. LATINO L. REV. 73, 89 (2009) (noting that the plenary
power doctrine is ―oft-analyzed‖); Cox, supra note 64, at 346 (describing the plenary power doctrine as
―the most famous jurisprudential piece of American constitutional immigration law‖ and noting that ―it
has prompted more legal scholarship than perhaps any other aspect of immigration law‖).
68. These proceedings—sometimes referred to as inadmissibility proceedings—were intended
to determine whether a particular individual was entitled to enter into the United States. See RICHARD D.
STEEL, STEEL ON IMMIGRATION § 2:30 (2nd ed.). The ―entry‖ requirement was replaced by an
―admission‖ requirement in 1996. See id.
69. Helen Knauff devoted many years to entering the country lawfully. She initially arrived in
the United States on August 14, 1948 only to spend the next several years fighting the government‘s
efforts to exclude her for national security reasons. See Weisselberg, supra note 64, at 955, 961-64. After
losing at the Supreme Court, Knauff‘s supporters mounted a strong lobbying campaign that swayed public
opinion to her side and convinced several members of Congress to advocate on her behalf. See id. at 96164. Eventually, in 1951, the Board of Immigration Appeals overturned her exclusion, explaining that
exclusion should not be based on ―hearsay, uncorroborated by direct evidence.‖ See Matter of Ellen
Raphael Knauff, A-6937471 (BIA Aug. 29, 1951) (unpublished), reprinted in ELLEN RAPHAEL KNAUFF,
THE ELLEN KNAUFF STORY, appendix at 1633 (1952); Weisselberg, supra note 64, at 955, 963-64.
70. U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950).

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71

Under the Court‘s precedent, the answer to Justice Jackson‘s questions
would appear to be that the Due Process Clause does not stand in the way of
72
governmental action against excludable individuals.
In contrast, the Supreme Court has recognized that the Fifth Amendment‘s
Due Process Clause extends to all individuals who are placed in deportation
73
proceedings. Almost sixty years earlier, in a case dealing with the deportation of a
labor union organizer with alleged communist sympathies, the Court similarly
explained that ―[m]eticulous care must be exercised‖ to ensure that ―the essential
74
standards of fairness‖ are met by deportation proceedings. In a recent case, Demore
v. Kim, the Court reiterated its long-standing position that ―the Fifth Amendment
75
entitles aliens to due process of law in deportation proceedings.‖
The Supreme Court has extended due process protections to LPRs placed
76
into exclusion proceedings when returning from a short trip abroad. In Landon v.
Plasencia, a 1982 case concerning the constitutionally peculiar—if otherwise
entirely ordinary—situation of having an LPR who left the country for a few hours
or days charged as being inadmissible to the United States, the Court held that LPRs
in this situation are entitled to have their immigration status ―assimilat[ed] . . . to that
77
of an alien continuously residing and physically present in the United States.‖ No
78
other class of non-citizens is entitled to this protection.
That LPRs are provided greater due process protections than other noncitizens reflects the comparatively privileged nature of that status. LPRs, as the
moniker implies, are entitled to permanently reside in the United States so long as

71. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 226-27 (1953) (Jackson, J.
dissenting).
72. Indeed, Charles D. Weisselberg, who provides a rich history of Mezei‘s plight and details
Jackson‘s dissent, explains the Mezei holding as giving immense latitude to the political branches of the
federal government to exclude a non-citizen for ostensibly national security concerns:
Despite Justice Jackson‘s dissent, the rule of Mezei is simple and straightforward:
Mezei came to the border without permission to enter. Based upon the executive‘s
national security concerns, he was properly excluded and detained without a
hearing. Though Mezei had made it to U.S. soil, he would be treated the same as
someone who had not. Indefinite detention may be regrettable, but the length of
confinement does not diminish the executive‘s power to detain.
Weisselberg, supra note 64, at 970.
73. See Demore v. Kim, 538 U.S. 510, 523 (2003); see also Lozada v. INS, 857 F.2d 10, 13
(1st Cir. 1988) (stating that individuals in deportation proceedings ―are entitled to due process‖).
74. See Bridges v. Wixon, 326 U.S. 135, 154 (1945).
75. See Demore, 538 U.S. at 523 (quoting Reno v. Flores, 507 U.S. 292, 306 (1993)); see also
Yamataya v. Fisher (The Japanese Immigrant Case), 189 U.S. 86, 100-01 (1903) (holding that the Due
Process Clause extends to non-citizens). Over a century ago, the Supreme Court held that the Fifth
Amendment, like the Sixth Amendment, applies to ―all persons within the territory of the United States.‖
Wong Wing v. United States, 163 U.S. 228, 238 (1896). In Demore, the Court considered a due process
challenge to INA § 236(c), 8 U.S.C. § 1226(c), a provision requiring mandatory detention of non-citizens
charged with any of a panoply of crime-related grounds of removability. The Court ultimately concluded
that mandatory detention, even without an individualized determination of dangerousness or flight risk, is
constitutionally permissible. See Demore, 538 U.S. at 531.
76. See Landon v. Plasencia, 459 U.S. 21, 33 (1982).
77. Id. (discussing Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953)).
78. See Weisselberg, supra note 64, at 991 (asserting that ―[t]he returning resident exception,
formulated in Plasencia, cannot be reconciled with the holdings in Knauff and Mezei.‖).

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they abide by the nation‘s immigration laws. They generally enjoy the many
privileges and responsibilities of citizenship, though notably, they usually lack the
80
right to vote. Like citizens, they are able to leave the United States without seeking
81
prior permission from the government and may return without a visa. In addition,
82
many LPRs develop deep ties to the United States. It is not uncommon for LPRs to
83
have spent more years in the United States than in their country of origin.
79. INA § 101(a)(20), 8 U.S.C. § 1101(a)(20). Generally LPRs retain this status until the entry
of a final administrative order. See Matter of Martinez, 25 I. & N. Dec. 66, 69 (BIA 2009). There are
several routes to LPR status. The most common path is through a qualifying family member who is a
United States citizen or LPR. See STEEL, supra note 67, at § 4:2 (2nd ed.). The spouses and children of
United States citizens and the parents of a citizen who is at least twenty-one years old may qualify as
―immediate relatives,‖ generally the quickest way through the administrative process. See INA §
201(b)(2), 8 U.S.C. § 1151(b)(2). The spouses, unmarried sons, and unmarried daughters of United States
citizens or LPRs, married sons or daughters of United States citizens, and brothers and sisters of United
States citizens if the citizen is older than twenty-one are also eligible, though the waiting times vary
significantly for each of these categories. See INA § 203(a), 8 U.S.C. § 1153(a).
80. See Ambach v. Norwick, 441 U.S. 68, 81 n.14 (1979) (recognizing that ―resident aliens
pay taxes, serve in the Armed Forces, and have made significant contributions to our country in private
and public endeavors.‖). Nora V. Demleitner notes that prior to the influx of immigrants from southern
and eastern European countries in the late nineteenth century some states granted white, male non-citizens
the right to vote. See Nora V. Demleitner, The Fallcy of Social “Citizenship,” or the Threat of Exclusion,
12 GEO. IMMIGR. L.J. 35, 38 (1997). Richard Briffault summarizes laws that allowed non-citizens to vote
in the past and that does now:
In the past, as many as sixteen states authorized aliens to vote. Indeed, the Supreme
Court in Minor v. Happersett, [88 U.S. 162, 177 (1874)] cited the enfranchisement
of aliens as grounds for rejecting the argument that the suffrage is a right of
citizenship. Today, in an echo of an older tradition—before the nationalization of
voting rules—in which localities often had different suffrage criteria than their
states, a handful of school districts permit aliens whose children are in local schools
to vote in community school board elections, and at least one locality permits aliens
to vote in municipal elections. With these exceptions, however, resident aliens are
unenfranchised, even at the state and local level.
Richard Briffault, The Contested Right to Vote, 100 MICH. L. REV. 1506, 1526 (2002) (internal citations
omitted).
81. See INA § 211(b), 8 U.S.C. § 1181(b).
82. The Congressional Research Service reported that 65.6% of all LPRs admitted in 2004
were granted such status ―on the basis of family ties.‖ See Ruth Ellen Wasem, Domestic Social Policy
Division, Congressional Research Service, U.S. Immigration Policy on Permanent Admissions 10 (2006),
http://fpc.state.gov/documents/organization/66512.pdf. The Migration Policy Institute reported that family
reunification accounted for 57.8% of all LPR admissions in 2005. See Jeanne Batalova, Spotlight on Legal
Immigration
to
the
United
States,
Aug.
26,
2006,
http://www.migrationinformation.org/Feature/display.cfm?ID=414#6. Numerous immigration law
commentators have similarly asserted that LPRs have significant ties to the United States. See, e.g., Peter
L. Markowitz, Straddling the Civil-Criminal Divide: A Bifurcated Approach to Understanding the Nature
of Immigration Removal Proceedings, 43 Harv. C.R.-C.L. L. Rev. 289, 292 (2008) (asserting, ―Permanent
residents, as a class, have the greatest economic and familial connections and political allegiance to the
United States.‖). Indeed, one form of relief from removal available to LPRs, Cancellation of Removal,
depends in part ―on strong ties to the United States and strong equities.‖ See Jojo Annobil, The
Immigration Representation Project: Meeting the Critical Needs of Low-Wage and Indigent New Yorkers
Facing Removal, 78 FORDHAM L. REV. 517, 531 (2009) (citing INA § 240A(a), 8 U.S.C. § 1229b(a)).
83. See, e.g., Guerrero-Perez v. INS, 242 F.3d 727, 728 (7th Cir. 2001) (involving a LPR who
―was born on January 25, 1979 and entered the United States on March 28, 1979 when he was just over
two months old‖); In re Michelle Avatea Marks, A 35-676-702, 2007 WL 1724865 (BIA May 25, 2007)
(unpublished) (involving an individual ―who was admitted to the United States as a LPR on March 3,
1978, when she was 5 years old‖ and who had ―more than 26 years‖ in this country when her removal case
was decided by an Immigration Judge); In re Patricia E. Bowen, A 30-061-810, 2007 WL 275726 (BIA
Jan. 11, 2007) (unpublished) (―The respondent relocated to this country as a 12-year-old child and has
lived in the United States as a LPR since that time, a total of more than 35 years.‖).

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Though LPRs share many of the rights and privileges afforded to citizens,
LPRs are nonetheless restricted by their fundamental status as non-citizens. Most
obviously, they can suffer an extraordinarily harsh civil punishment, removal from
84
the country. Resembling a plight that is repeated frequently in immigration courts
throughout the country, Mary Anne Gehris, a thirty-four-year-old LPR who entered
the country as an infant, found herself facing deportation as an aggravated felon for a
85
misdemeanor conviction that resulted from a fistfight eleven years earlier. In
addition, they may lose their privileged due process protection for being outside the
86
United States for more than a ―temporary visit.‖
In contrast, individuals who are neither citizens nor LPRs—formally
described as ―non-immigrants‖—are significantly less privileged. Though there are
many legal statuses for people who are not LPRs to enter the country, each with its
87
own eligibility criteria, as a general rule, non-citizens who are not LPRs do not
enjoy even an approximation of the same privileges as LPRs. Most noticeably, these
88
individuals are usually allowed to remain in the United States for a finite term.
After that period of time expires, they may request an extension of their stay if a
89
90
qualifying extension exists or else leave the country. A third option is to simply
84. Kwong Hai Chew v. Colding, 344 U.S. 590, 597 (1953); see INA § 237(a), 8 U.S.C. §
1227(a) (providing a panoply of grounds for which ―[a]ny alien . . . in and admitted to the United States
shall . . . be removed‖ from the United States); see also INA § 101(a)(3), 8 U.S.C. 1101(a)(3) (defining an
―alien‖ as ―any person not a citizen or national of the United States‖).
85. See Joanne Gottesman, Avoiding the “Secret Sentence”: A Model for Ensuring That New
Jersey Criminal Defendants are Advised About Immigration Consequences Before Entering Guilty Pleas,
33 SETON HALL LEGIS. J. 357, 368-69 (2009). Aggravated felonies are statutorily defined criminal
offenses that fall into one of twenty-one categories, many of which include subcategories. See INA §
101(a)(43), 8 U.S.C. § 1101(a)(43).
86. See INA 211(b), 8 U.S.C. § 1181(b) (stating that a LPR may return to the United States
after ―a temporary visit abroad‖ without needing a visa or reentry permit). In re Huang, the Board of
Immigration Appeals explained, ―What is a temporary visit cannot be defined in terms of elapsed time
alone. Rather, the intention of the alien, when it can be ascertained, will control.‖ 19 I. & N. Dec. 749, 753
(BIA 1988) (internal citations omitted). Despite this fact-specific assertion, after 180 days outside the
United States a returning LPR must succumb to additional entry requirements. See INA § 101(a)(13)(C), 8
U.S.C. § 1101(a)(13)(C) (providing, ―An alien lawfully admitted for permanent residence in the United
States shall not be regarded as seeking an admission into the United States for purposes of the immigration
laws unless the alien . . . has been absent from the United States for a continuous period in excess of 180
days.‖). In contrast, a LPR returning from a temporary visit abroad ―is entitled as a matter of due process
to a hearing on the charges underlying any attempt to exclude him.‖ Landon v. Plasencia, 459 U.S. 21, 33
(1982) (quoting Rosenberg v. Fleuti, 374 U.S. 449, 460 (1963)).
87. See INA § 101(a)(15), 8 U.S.C. § 1101(a)(15) (providing dozens of categories of
―nonimmigrant aliens‖ who may lawfully reside in the country but who are not defined as ―immigrants‖ as
that term is defined by the INA); see also STEEL, supra note 68, at § 3:1 (2nd ed.) (explaining that
―Persons in the United States can generally be divided into seven categories: citizens; nationals;
permanent resident aliens; temporary residents; asylees and refugees; nonimmigrants; and persons without
legal status.‖).
88. See STEEL, supra note 68, at § 3:1 (2nd ed.). Steel explains that nonimmigrants ―generally
are aliens coming to the United States for a temporary period of time to engage in an activity encompassed
within one of the nonimmigrant classifications set forth in the statute.‖ Id.; see THOMAS ALEXANDER
ALEINIKOFF ET AL., IMMIGRATION AND CITIZENSHIP: PROCESS AND POLICY 396 (6th ed. 2008).
89. See 8 C.F.R. § 214.1(c)(3) (listing the classes of non-immigrants who are ineligible for
extensions); see also INA § 248 (explaining which categories of non-immigrant admissions located in
INA § 101(a)(15) are eligible for change of status to another non-immigrant category).
90. AUSTIN T. FRAGOMEN, JR., ALFRED J. DEL REY, JR., & SAM BERNSEN, 1 IMMIGR. LAW &
BUSINESS § 2:11 (2009) (explaining that denial of a visa extension, even if a motion to reconsider is filed,
―will not stop the DHS from requiring the departure of the alien and eventually bringing removal
proceedings against him or her.‖).

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remain in the United States beyond the time allowed in violation of immigration
91
laws. This is a common, though precarious, choice made by many non-LPR
92
immigrants.
Much like the wide gulf in status that divides LPRs and non-LPR noncitizens, the constitutional due process protections granted an individual in exclusion
proceedings is substantially less stable than that of an individual in deportation
93
proceedings. One commentator summarized this anomaly by writing: ―Aliens who
are present in the United States are ‗deportable‘ and can invoke due process
protections in challenging deportation proceedings . . . while noncitizens at the
border are considered ‗excludable‘ and can face immediate deportation without
94
procedural safeguards.‖ The significant distinction in constitutional protections
afforded individuals in deportation proceedings versus exclusion proceedings stems
from what Adam B. Cox has described as the ―seductive idea‖ around which
immigration law is organized, ―that rules for selecting immigrants are fundamentally
95
different from rules regulating immigrants outside the selection context.‖
Seemingly in an effort to effectuate the fairness requirement of due process
in immigration proceedings, the Plasencia Court for the first time explicitly
96
incorporated Eldridge‘s three-pronged balancing test into the immigration context.
To guide courts‘ application of the Due Process Clause, the Plasencia Court
91. See INA § 212(a)(B)(9)(i) (providing penalties for unlawful presence in the country); INA
§ 212(a)(9)(B)(ii) (defining ―unlawful presence‖ to include being ―present in the United States after the
expiration of the period of stay authorized by the Attorney General‖).
92. Remaining in the country beyond the date that has been authorized—referred to as
―overstaying‖ one‘s visa—is not uncommon; indeed, this accounts for a significant percentage of the
undocumented population. See Kevin R. Johnson, Public Benefits and Immigration: The Intersection of
Immigration Status, Ethnicity, Gender, and Class, 42 U.C.L.A. L. REV. 1509, 1546 (1995). Indeed, it is
estimated that,
[a]s much as 45% of the total unauthorized migrant population entered the country
with visas that allowed them to visit or reside in the U.S. for a limited amount of
time. Known as ‗overstayers,‘ these migrants became part of the unauthorized
population when they remained in the country after their visas had expired.
Pew Hispanic Center, Fact Sheet: Modes of Entry for the Unauthorized Migrant Population (May 22,
2006), http://pewhispanic.org/files/factsheets/19.pdf.
93. See Weisselberg, supra note 64, at 948-49.
94. Nimrod Pitsker, Comment, Due Process for All: Applying Eldridge to Require Appointed
Counsel for Asylum Seekers, 95 CAL. L. REV. 169, 173-74 (2007); see Weisselberg, supra note 64, at 94849. The importance of territorial location—inside or outside the country—is not without complication.
See, e.g., T. Alexander Aleinikoff, Detaining Plenary Power: The Meaning and Impact of Zadvydas v.
Davis, 16 Geo. Immigr. L.J. 365, 374-75 (2002) (discussing the doctrinal incoherence of heavy reliance on
territoriality); Linda Bosniak, A Basic Territorial Distinction, 16 GEO. IMMIGR. L.J. 407, 411-412 (2002)
(characterizing as ―misleading‖ the use of a stark territorial distinction and suggesting that ―we . . .
challenge the tyranny of the ‗territorial distinction‘ altogether.‖).
95. Cox, supra note 65, at 342.
96. Landon v. Plasencia, 459 U.S. 21, 34 (1982) (discussing Mathews v. Eldridge, 424 U.S.
319, 334-35 (1976)); see Masters, supra note 15, at 1008. The Supreme Court did consider an immigrant‘s
right to due process between Eldridge and Plasencia. In Mathews v. Diaz, the Court considered ―whether
Congress may condition an alien‘s eligibility for participation in a federal medical insurance program on
continuous residence in the United States for a five-year period and admission for permanent residence.‖
426 U.S. 67, 69 (1976). Diaz did not concern immigration proceedings. See id. Moreover, though it does
not refer explicitly to the Equal Protection Clause of the Fifth or Fourteenth Amendments, the decision is
framed as an equal protection case. See Demore v. Kim, 538 U.S. 510, 547 n.9 (2003) (Souter, J.,
concurring in part and dissenting in part). For example, it devotes considerable attention to Congress‘s
ability to make different rules for citizens than non-citizens and different rules for different categories of
non-citizens. See Diaz, 426 U.S. at 78-80.

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explained that the Clause ―does not extend to imposing procedures that merely
97
displace congressional choices of policy.‖ That is, the Clause does not grant courts
the power to second-guess the procedures adopted by the political branches of
government. Rather, ―[t]he role of the judiciary is limited to determining whether the
98
procedures meet the essential standard of fairness under the Due Process Clause.‖
Though this qualification exists in all due process analyses, its function in the
immigration context is especially important because the Court, it seems, has yet to
heed Justice Jackson‘s admonition in Mezei that ―basic fairness in hearing
99
procedures does not vary with the status of the accused.‖ On the contrary, while the
Court has repeated its admonition that the Due Process Clause includes deportation
proceedings, it has also repeatedly advised, ―Congress may make rules as to aliens
100
that would be unacceptable if applied to citizens.‖ The fairness required by the
Due Process Clause, it seems, is therefore couched by the Court‘s pronouncements
that standards of fairness vary depending on the status of the accused—or, more
vividly, by the geographic location of the accused.
C. Immigration Detention and Deportation Today
The remainder of this article turns to the application of the Fifth
Amendment‘s Due Process Clause to two of the federal government‘s current
goals—to remove as many alleged immigration law violators as possible and release
as few as possible into the United States while their immigration proceedings are
pending. The Bush Administration pursued these goals with vigor, often couched as
101
part of the administration‘s counter-terrorism strategy.
To date, the Obama
Administration has followed a similar course, especially with regard to individuals

97. See Landon, 459 U.S. at 35.
98. Id. at 34-35.
99. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 225 (1953) (Jackson, J.
dissenting).
100. Demore v. Kim, 538 U.S. 510, 522 (2003).
101. In a remarkably direct official statement linking immigration and terrorism, President
Bush issued a presidential directive regarding ―Combating Terrorism Through Immigration Policies‖ [sic]
in the days following the September 11, 2001 attacks. See George W. Bush, Homeland Security
Presidential Directive-2 (Oct. 29, 2001), http://www.dhs.gov/xabout/laws/gc_1214333907791.shtm.
Many commentators have similarly made this connection. See, e.g., Susan N. Herman, Federal Criminal
Litigation in 20/20 Vision, 13 LEWIS & CLARK L. REV. 461, 465 (2009) (―The DHS seems to be focusing
on immigration enforcement as part of its forward-looking strategy to prevent terrorism.‖). Bush‘s
Secretary of Homeland Security Michael Chertoff made explicit the administration‘s linkage of
immigration detention and terrorism: ―Either the rules should be modified to allow immigration authorities
to balance the risks facing illegally-present terrorism suspects with the risks facing the public, or the law
should allow temporary detention of dangerous illegal aliens until they can be safely removed from the
country.‖ Michael Chertoff, Tools Against Terror: All of the Above, 32 HARV. J.L. & PUB. POL‘Y 219, 228
(2009). A high-ranking Border Patrol official reportedly explained how the nexus of immigration policing
and the Bush Administration‘s terrorism policies operated on the ground: ―[T]he nexus between our postSept. [sic] 11 mission and our traditional role is clear….Terrorists and violent criminals may exploit
smuggling routes used by immigrants to enter the United States illegally and do us harm.‖ Randal C.
Archibold, Border Patrol Draws Increased Scrutiny as President Proposes an Expanded Role, N.Y.
TIMES, June 4, 2006, quoted in David Manuel Hernández, Pursuant to Deportation: Latinos and
Immigrant Detention, in BEHIND BARS: LATINO/AS AND PRISON IN THE UNITED STATES 38, 60 (Suzanne
Oboler ed., 2009). Robert Koulish describes the post-September 11 emphasis on security with respect to
immigration as the ―securitization of immigration. Migrants would henceforth be described through the
lens of security, rather than labor markets or law enforcement.‖ ROBERT KOULISH, IMMIGRATION AND
AMERICAN DEMOCRACY: SUBVERTING THE RULE OF LAW 6 (2010) (citation omitted).

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102

who are deportable because of a criminal violation.
The detention and removal priorities of the Bush and Obama
Administrations have not developed in a vacuum. Rather, Congress has consistently
103
expanded the country‘s immigration detention apparatus over the last two decades.
The Anti-Drug Abuse Act, enacted in 1988, introduced the concept of the
―aggravated felony‖ into immigration law as a ―severe and far reaching‖ ground for
104
deportation. Since the 1996 enactment of the Illegal Immigration Reform and

102. John Morton, who heads ICE under President Obama, reportedly told a journalist
recently, ―This isn‘t a question of whether or not we will detain people. We will detain people, and we
will detain them on a grand scale.‖ Jenna Greene, ICE Warms Up To Detainees: Immigration Chief
Promises Overhaul of “Haphazard” System, NAT‘L. L.J., Feb. 8, 2010, at 1. Reflecting this policy, the
Transactional Records Clearinghouse (TRAC) reported that:
At least through the first five months of the Obama Administration there has been
no let up in the increase in criminal prosecutions as a result of ICE‘s enforcement
activities. When monthly 2009 prosecutions in May are compared with those of the
same period in the previous year, the number of filings was up 29.8 percent.
Transactional Records Clearinghouse, ICE Criminal Prosecutions Continue to Rise Under Obama,
http://trac.syr.edu/immigration/reports/216/ (last visited June 28, 2010).
Fifty-five percent of prosecutions brought nationwide in May 2009 were related to immigration
offenses while thirty-three percent were for drug-related offenses. See id. Ten months later data compiled
by TRAC suggests that immigration prosecutions remain a top priority. See Transactional Records
Clearinghouse, TRAC Reports: Prosecutions for March 2010, Immigration and Customs in Homeland
Security, http://trac.syr.edu/tracreports/bulletins/hsaa/monthlymar10/fil/ (last visited June 22, 2010).
According to TRAC, ICE referred 2,208 cases for prosecutions based on allegations of illegal reentry of a
deported individual, a violation of 8 U.S.C. § 1326; 310 cases for allegedly harboring undocumented
people, a violation of 8 U.S.C. § 1324; 172 cases for fraud or misuse of a visa, a violation of 18 U.S.C. §
1546; 71 cases for improper entry in violation of 8 U.S.C. § 1325; and 51 cases of false claims to U.S.
citizenship, a violation of 18 U.S.C. § 911. See id. Though these numbers represent a 7.9 percent drop
from March 2009, prosecutions of these types are nonetheless well above where they were five years ago.
See id.; see also Joseph Nevins, Security First: The Obama Administration and Immigration “Reform”,
NACLA REPORT ON THE AMERICAS 32, 35 (Jan.-Feb. 2010) (criticizing the Obama Administration‘s
policy of ―targeting ‗criminal aliens‘‖ and describing this policy as a ―dragnet‖ that ―almost inevitably
divide[s] families‖).
103. See Alice E. Loughran, Congress, Categories, and the Constitution—Whether Mandatory
Detention of Criminal Aliens Violates Due Process, 18 GEO. IMMIGR. L.J. 681, 682 (2004); see also Ira J.
Kurzban, Democracy and Immigration, in KEEPING OUT THE OTHER: A CRITICAL INTRODUCTION TO
IMMIGRATION ENFORCEMENT TODAY, supra note 1, at 63, 64-65 (discussing the most notable of the many
immigration laws enacted during the 1980s and 1990s). Kurzban explains:
Within a period of approximately thirty years, we went from the 1965 civil rights
act for the foreign born, which eliminated the National Origins Quota System, to the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which
literally rewrote the immigration laws to severely restrict due process and most
forms of immigration relief.
Id. at 64.
At the same time, the federal government increased funding for immigration enforcement from
$1 billion in 1985 to $4.9 billion in 2002 and likely more since then. See MIGRATION POLICY INST.,
IMMIGRATION
ENFORCEMENT
SPENDING
SINCE
IRCA
(Nov.
2005),
http://www.migrationpolicy.org/ITFIAF/FactSheet_Spending.pdf.
104. Anti-Drug Abuse Act of 1988, Pub. L. 100-690, 102 Stat. 4181, § 7341-50 (1988). When
introduced, the term ―aggravated felony‖ included only three crimes—murder, drug trafficking, and illicit
trafficking in firearms. See id. at § 7342. Today, there are twenty-one categories of aggravated felonies
and several of those categories include subsections. See INA § 101(a)(43), 8 U.S.C. § 1101(a)(43); see
also Adonia R. Simpson, Judicial Recommendations Against Removal: A Solution to the Problem of
Deportation for Statutory Rape, 35 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 489, 503-04 (2009)
(―The immigration consequences of a conviction for an aggravated felony are severe and far reaching. A
conviction of an aggravated felony: (1) removes most forms of discretionary relief; (2) requires mandatory
detention without bond until removed from the country; (3) places a permanent bar on re-entry; (4)

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Immigrant Responsibility Act (IIRIRA) and the Antiterrorism and Effective Death
Penalty Act (AEDPA), the category of LPRs who are deportable due to some
criminal conviction has ballooned while the options for discretionary relief from
105
deportation have drastically diminished. Almost simultaneously, Congress raised
the standard for release on bond of individuals with pending deportation
106
proceedings.
DHS‘s efforts to carry out these goals have resulted in an unprecedented
number of people who have been detained by federal officials due to suspicion of an
107
immigration law infraction.
According to the department‘s Inspector General,
―[i]n FY 2007, ICE detained more than 311,000 aliens, with an average daily
108
population of more than 30,000 and an average length of stay of 37 days.‖ HRW,
analyzing data received from DHS, reports that ―between 1997 and 2007, 897,099
non-citizens were deported from the United States after serving their criminal
109
sentences.‖ Of these, 20% were lawfully in the country, including 9.8% (or 87,844
110
individuals) who were LPRs. Most of the LPRs were likely here for more than a
111
decade prior to their deportation. Though the vast majority of these individuals
subjects a person to a twenty-year prison term if he returns unlawfully; and perhaps most importantly, (5)
eliminates procedural protections, such as review of a final deportation order by federal courts and habeas
corpus review.‖) (internal citations omitted).
105. See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat.
1214 (1996); Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208,
Div. C, 110 Stat. 3009-546 (1996); see also Loughran, supra note 103, at 686 (―For criminal aliens under
the IIRIRA, detention pending removal proceedings is mandated; discretionary relief from removal is not
available; direct judicial review is eliminated; and a ninety-day limit is given by way of instruction to INS
for physical removal after the entry of a final administrative order.‖) Section 303 of the IIRIRA, for
example, added a provision to the INA that requires the detention, pending removal proceedings, of all
individuals with certain specified criminal convictions. See INA § 236(c), 8 U.S.C. § 1226(c).
106. See Loughran, supra note 103, at 683.
107. Though some suspected immigration violators are prosecuted criminally, this article
addresses only those who are placed in civil administrative proceedings.
108. ICE’s Tracking and Transfers, supra note 27, at 2.
109. HUMAN RIGHTS WATCH, FORCED APART (BY THE NUMBERS): NON-CITIZENS DEPORTED
MOSTLY FOR NON-VIOLENT OFFENSES 2, 19 (2009) (computing data provided to Human Rights Watch by
DHS in response to a Freedom of Information Act request). For a discussion of this report‘s methodology
and source data, see id. at 10-11, 19.
110. Id. at 2, 24 tbl.4.
111. The Transactional Records Access Clearinghouse at Syracuse University, analyzing data
from mid-1997 to May 2006 that it received from DHS through use of the Freedom of Information Act,
reported:
By and large individuals who have been charged [with an aggravated felony] are
long time residents of the United States – on average they have been in the country
15 years. The median time – half had more time, half less, was 14 years. For 25
percent, the average time between their original date of entry to this country and
when deportation proceedings were started in immigration court is 20 years or
longer, and for 10 percent it was more than 27 years. The longest length of stay
before being charged was 54 years.
Transactional Records Access Clearinghouse, How Often is the Aggravated Felony Statute Used?,
http://trac.syr.edu/immigration/reports/158/ (last visited June 28, 2010).
The City Bar Justice Center reached a similar conclusion based on its less methodologically
sound analysis of detainees at the Varick Federal Detention Center in New York City: ―The overwhelming
majority of the detainees interviewed (85%) had been living in the United States for more than five years.
Sixty-five percent had been living in the country for over ten years, and 28% had been here fore more than
20 years.‖ See CITY BAR JUSTICE CENTER, NYC KNOW YOUR RIGHTS PROJECT: AN INNOVATIVE PRO
BONO RESPONSE TO THE LACK OF COUNSEL FOR INDIGENT IMMIGRANT DETAINEES 8 (Nov. 2009)
[hereinafter NYC KNOW YOUR RIGHTS PROJECT]. This survey is less methodologically sound because, as

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were Mexican citizens (701,700, or 78.2%), six other countries received more than
10,000 deportees during this period: Honduras (27,594, or 3.1%), El Salvador
(27,348, or 3.0%), the Dominican Republic (22,935, or 2.6%), Guatemala (20,463, or
112
2.3%), Colombia (14,862, or 1.7%), and Jamaica (14,501, or 1.6%). Overall, the
vast majority of individuals detained due to a criminal violation have been convicted
of non-violent offenses. According to the former director of ICE‘s Office of
Detention Policy and Planning, ―The most common crimes committed by criminal
aliens are those involving dangerous drugs, traffic offenses, simple assault, and
113
larceny.‖ Only ―11 percent had committed UCR Part-1 violent crimes,‖ meaning
114
aggravated assault, forcible rape, murder, or robbery.
In recent years, ICE has also made a concerted—and by all accounts
115
successful—effort to refrain from releasing detainees.
The agency went from
releasing approximately 113,000 immigrants pending removal determinations in the
2005 fiscal year to releasing ―nearly zero‖ in the 2007 fiscal year, effectively ending
116
what was known as the ―catch and release‖ practice.
This push to imprison, of course, resulted in an equally sizeable increase in
117
demand for bed spaces. Many of the prisons in which only immigration detainees
118
are held are located in sparsely populated, geographically isolated regions. Several
of the largest prisons—measured by the number of detainees held there—are located
in isolated regions of South Texas, including two that are in the deepest part of South
119
Texas known as the Rio Grande Valley.
The Willacy Detention Center, in
the report states, ―The sample is not completely random, as detainees choose whether to sign up for a
consultation and there are time and space constraints at the clinics.‖ Id.
112. See HUMAN RIGHTS WATCH, supra note 109, at 21 tbl.3. Other countries with more than
1,000 deportees are, in descending order: Canada, Brazil, Haiti, Nicaragua, the Philippines, Nigeria,
Ecuador, Peru, the United Kingdom, Trinidad and Tobago, Guyana, Venezuela, Belize, China, Panama,
South Korea, Pakistan, and India. See id.
113. DORA SCHRIRO, IMMIGRATION DETENTION OVERVIEW AND RECOMMENDATIONS 6
(2009).
114. Id. at 6 & n.5. ―Violent crimes are defined in the UCR Program as those offenses which
involve force or threat of force.‖ U.S. Dep‘t of Justice, Federal Bureau of Investigation, Crime in the
United States: 2007, http://www2.fbi.gov/ucr/cius2007/offenses/violent_crime/index.html.
115. See, e.g., Suzanne Gamboa, First Moves Toward Detention Makeover, ASSOCIATED
PRESS, Aug. 7, 2009 (discussing the end of the so-called ―catch and release‖ program by the Department
of Homeland Security); Laura Tillman, Mental Concerns Grow for Detainees: Procedures Needed to
Evaluate Psychological Needs, Advocates Argue, BROWNSVILLE HERALD, Dec. 22, 2008, at 1 (―Since the
U.S. Department of Homeland Security ended the catch-and-release system in 2006, which allowed
undocumented immigrants to go free until their date in immigration court, the number of detention centers
has mushroomed.‖); Editorial, Detention Deficit, WASH. POST, May 17, 2008 (reporting that ―after the
2001 terrorist attacks, [DHS] abandoned its ‗catch and release‘ approach and opted for detention of all
those who may be subject to deportation.‖).
116. See Dep‘t of Homeland Security, Office of the Inspector Gen., Immigration and Customs
Enforcement Detention Bedspace Management, Apr. 2009, at 2 [hereinafter ICE Bedspace Management].
117. See id.
118. Ironically, population data compiled by the Census Bureau increases the population of
these communities by including immigration detainees. See Kevin Seiff, Down for the Count: The
Profitable Game of Including Immigrants in the Census, Then Deporting Them, TEX. OBSERVER, Mar. 25,
2010.
119. Data compiled by the New York Times indicates that only four facilities nationwide had
an average daily population of more than 1,000 prisoners in each of the last three years: the Stewart
Detention Facility in Georgia, the Eloy Federal Contract Facility in Arizona, and two South Texas prisons,
the South Texas Detention Facility and Willacy County Detention Center. Ford Fessenden, Immigration
Detention
Centers,
N.Y.
TIMES,
Feb.
23,
2010,
http://www.nytimes.com/interactive/2010/02/23/nyregion/20100223-immig-table.html.

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Raymondville, Texas, had an average daily population of 1,430 detainees in 2008,
down slightly from the 1,478 individuals that were held there on a daily basis the
120
previous year.
According to the U.S. Census Bureau, Raymondville has a
population of 9,522, attributing to it almost half the population of the county in
121
which it is located, Willacy County.
Meanwhile, the Port Isabel Service
Processing Center, located in Los Fresnos, Texas, held an average daily population
122
of 1,500. In 2008, Los Fresnos had a population of 5,538. Another of the largest
prisons, the South Texas Detention Facility, in Pearsall, Texas, held 1,630
individuals in March 2009, 1,557 individuals in April 2009, 1,549 individuals in
123
124
May 2009, and 1,642 in June 2009. In 2008, Pearsall had a population of 7,663.
The country‘s other largest immigration prisons, such as the Eloy Detention Center
in Eloy, Arizona (housing an average daily population of 1,457 individuals in 2008)
and the Stewart Detention Center in Lumpkin, Georgia (housing an average daily
population of 1,644 individuals in 2008) are located in similarly sparsely populated
125
regions.
Aside from housing large numbers of individuals in these prisons, the states
in which these prisons are located were important players in the detainee transfer
process. Between 1999 and 2008, Texas, Louisiana, and Arizona were three of the
126
four leading states in number of out-of-state transferees received. Of the prisons
within Texas, the South Texas Detention Facility ranked seventh nationwide in the
number of transfers terminating there (25,375), the Willacy Detention Center ranked
tenth (19,528), and the Port Isabel Service Processing Center ranked seventeenth
127
(11,014).
Immigrants‘ rights advocates frequently accuse DHS of building
immigration prisons in isolated locales precisely because they are far removed from

120. Dep‘t of Homeland Security, Immigration and Customs Enforcement Agency, Average
Daily Population (ADP) by Fiscal Year (FY06-FY08) 13, http://www.ice.gov/foia/readingroom.htm#31.
121. U.S. CENSUS BUREAU, 2008 POPULATION ESTIMATES, RAYMONDVILLE CITY, TEXAS
(providing data on Raymondville‘s population); US CENSUS BUREAU, 2008 POPULATION ESTIMATES,
WILLACY COUNTY, TEXAS (stating that Willacy County had a population of 20,600 in 2008).
122. U.S. CENSUS BUREAU, 2008 POPULATION ESTIMATES, LOS FRESNOS CITY, TEXAS.
123. Dep‘t of Homeland Security, Immigration and Customs Enforcement Agency, ICE
Detainee Population for the Month of June 2009, FOIA 09-4389 (providing detainee population data for
June 2009), http://www.ice.gov/doclib/foia/dfs/detaineepopjune2009.pdf; Dep‘t of Homeland Security,
Immigration and Customs Enforcement Agency, ICE Detainee Population for the Month of May 2009,
FOIA
09-3689
(providing
detainee
population
data
for
May
2009),
http://www.ice.gov/doclib/foia/dfs/09foia3689.pdf; Dep‘t of Homeland Security, Immigration and
Customs Enforcement Agency, ICE Detainee Population for the Month of April 2009, FOIA 09-3149
(providing detainee population data for April 2009), http://www.ice.gov/doclib/foia/dfs/09foia3149.pdf;
Dep‘t of Homeland Security, Immigration and Customs Enforcement Agency, ICE Detainee Population
for the Month of March 2009, FOIA 09-2549 (providing detainee population data for March 2009),
http://www.ice.gov/doclib/foia/dfs/detaineepopmarch2009.pdf.
124. U.S. Census Bureau, 2008 Population Estimates, Pearsall City, Texas.
125. Dep‘t of Homeland Security, Immigration and Customs Enforcement Agency, Average
Daily Population (ADP) by Fiscal Year (FY06-FY08) 5, 12, http://www.ice.gov/foia/readingroom.htm#31.
The Census Bureau reports that, in 2008, Eloy, Arizona had a population of 12,750 and Lumpkin, Georgia
had a population of 1,220. See U.S. CENSUS BUREAU, 2008 POPULATION ESTIMATES, ELOY CITY,
ARIZONA (providing data on Eloy‘s population); U.S. CENSUS BUREAU, 2008 POPULATION ESTIMATES,
LUMPKIN CITY, GEORGIA (providing data on Lumpkin‘s population).
126. LOCKED UP FAR AWAY, supra note 25, at 33 tbl. 7. A ―receiving‖ facility is defined as
one ―to which the detainee was later transferred.‖ Id. at 13.
127. Id. at 35 tbl. 9.

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everything else—most importantly, far removed from the family, friends, and
attorneys who might provide detainees with support. Aaron Haas, an immigration
attorney in San Antonio, Texas, articulated this criticism when he wrote about the
Port Isabel Service Processing Center: ―It is hard not to suspect ulterior motives. It
certainly cannot be a coincidence that Port Isabel is difficult to get to, making it very
hard for the detainees to receive family visitors, or to find lawyers and discuss with
them their health and treatment. You would be hard-pressed to find a location in the
128
continental U.S. that is more remote and troublesome to get to.‖
ICE officials reject this criticism outright. In a meeting with representatives
of AILA, the agency provided immigrants‘ rights advocates its official criteria for
determining the location of detention facilities. According to ICE, ―[t]he location of
an ICE facility is determined by a number of factors including cost, [immigration]
court location, airlines, and pro bono resources, but local demand and the availability
129
of high quality employees are the biggest factors.‖ In response to allegations that
the agency goes out of its way to locate immigration prisons in isolated locales, the
130
agency responded, ―[t]here is no plan to specifically build in remote areas.‖ The
131
department‘s Inspector General buttressed this assertion in an April 2009 report.
The Inspector General added that, ―to expedite the removal of aliens, ICE has
132
focused on positioning detainees at facilities near removal locations . . . .‖
Whether immigration prisons are built in remote locations for nefarious
reasons, as immigrants‘ rights advocates allege, or not, as ICE insists, there is no
133
question that legal resources are hard to come by in these locales. The list of free
legal service providers maintained by DHS for individuals near the Immigration
Court in Harlingen, Texas, the court that serves the Willacy Detention Center and
134
Port Isabel Service Processing Center, for example, identifies six agencies. Of
135
these six, five ―[w]ill represent aliens in asylum hearings.‖ Legal resources for
detainees listed for the San Antonio Immigration Court, which serves the South
Texas Detention Facility in Pearsall, are located in San Antonio, Austin, or

128. Aaron Haas, A Kindler, Gentler Gitmo?, SAN ANTONIO CURRENT, Aug. 19, 2009,
http://www.sacurrent.com/news/story.asp?id=70458. Enunciating a similar argument in a study of an
immigration prison in New York City Peter L. Markowitz wrote,
DHS prefers to establish detention centers in remote areas of southern states where,
presumably, space is ample, costs are low, and communities are more welcoming of
such facilities. Such areas are, of course, less likely [than New York] to have
abundant legal resources (either private or pro bono) and are great distances from
the homes and families of most detainees.
Markowitz, supra note 39, at 553.
129. AILA-ICE Liaison Meeting Minutes (Dec. 12, 2007), AILA InfoNet Doc. No. 08030662,
at 7.
130. Id.
131. See ICE Bedspace Management, supra note 116, at 3.
132. Id.
133. See, e.g., Nunez v. Boldin, 537 F. Supp. 578, 586 (S.D. Tex. 1982) (describing the
immigration prison in Los Fresnos, Texas as ―not located in an area where detainees can easily find legal
representation‖).
134. The Chief Immigration Judge is required by statute to compile and maintain a list of free
legal providers and offer this list to all individuals, detained or not, in immigration proceedings. 8 C.F.R. §
1003.61(a).
135. U.S.
Dep‘t
of
Justice,
List
of
Free
Legal
Services
Providers,
http://www.usdoj.gov/eoir/probono/freelglchtTX.htm (last visited Sept. 6, 2009).

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136

Edinburg, Texas. San Antonio is located 57 miles northeast of Pearsall, Austin is
located 135 miles away, and Edinburg 244 miles south. Indeed, representatives of the
Organization of American States (OAS), after a recent visit to several immigration
prisons, including Willacy and Port Isabel, echoed the concerns raised by advocates
137
such as Haas. The OAS reported that ―[t]he rural locations of many of the adult
138
detention facilities greatly impacts detainees‘ access to counsel . . . .‖
This
conclusion is reinforced by HRW‘s analysis of ICE transfer data as compared to the
number of attorneys who are members of AILA. HRW reported, ―the [federal circuit
court] most likely to receive detainees, the Fifth Circuit, has the worst (highest)
detainee/attorney ratios; whereas the circuits least likely to receive detainees—the
139
Second and the DC Circuits—have the best (lowest) detainee/attorney ratios.‖ The
undeniable result is that ―in many cases detainees are transferred to circuits with
relatively few immigration attorneys‖ creating what Lisa R. Pruitt and Beth A.
Colgan, discussing the availability of indigent criminal defense services, have termed
―justice deserts—places where justice is inferior or hard to come by [] because of
140
inadequate funding of indigent defense.‖
The increase in the number of individuals detained for alleged immigration
violations, held without release, and subsequently deported, combined with DHS‘s
placement of most of its largest prisons in sparsely populated regions means that
most detainees are transferred from the location in which they are apprehended to a
141
remote detention center. Indeed, 84 percent of immigration detainees during ICE‘s
142
2007 fiscal year were transferred at least once. Despite this astronomical number,
ICE claims that it would prefer to leave detainees in the region where they are
143
apprehended rather than transfer them. The agency insists that it ―usually has no
desire to transfer a detainee unless the move is required for operational reasons such
as to prevent overcrowding, to meet a detainee‘s special needs, for medical reasons,
144
or security related reasons.‖ Though it claims to lack a preference for transferring
detainees, the agency nonetheless recognizes that many transfers do occur and that
145
those transfers pose obstacles to legal representation.
The prevalence of immigrant communities in large urban areas suggests that
LPRs—who comprised almost ten percent of the individuals removed from the
146
United States between 1997 and 2007 —are likely to have been initially
apprehended at great distance from the rural immigration prisons where they are
136. Id.
137. See Press Release, Org. of American States, Inter-American Comm‘n on Human Rights,
IACHR
Visits
U.S.
Immigration
Detention
Facilities
(July
28,
2009),
http://www.cidh.oas.org/Comunicados/English/2009/53-09eng.htm (last visited Sept. 6, 2009).
138. Id.
139. See LOCKED UP FAR AWAY, supra note 25, at 37.
140. See id.; Lisa R. Pruitt & Beth A. Colgan, Justice Deserts: Spatial Inequality and Local
Funding of Indigent Defense, 52 ARIZ. L. REV. 219, 224 (2010).
141. Markowitz, supra note 39, at 553; see ICE’s Tracking and Transfers, supra note 27, at 2.
142. See ICE’s Tracking and Transfers, supra note 27, at 2.
143. See AILA-ICE Liaison Meeting Minutes (Dec. 12, 2007), AILA InfoNet Doc. No.
08030662, at 6.
144. AILA-ICE Liaison Meeting Minutes (May 30, 2008), AILA InfoNet Doc. No. 08121820,
at 4; see Taylor, supra note 37, at 1652.
145. See AILA-ICE Liaison Meeting Minutes (May 30, 2008), AILA InfoNet Doc. No.
08121820, at 3.
146. See HUMAN RIGHTS WATCH, supra note 109, at 2, 24 tbl.4.

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forced to wage their last battle to stay in this country. Rather than make their highstakes defense with the support of family, friends, and the large legal communities
that are common in cities with large populations, they must do so in places like
147
Pearsall, Los Fresnos, and Raymondville.

III. DUE PROCESS INSIDE TODAY‘S IMMIGRATION PRISONS
Sociologist David C. Brotherton described a removal hearing at which he
148
provided expert testimony as a ―theater of humiliation.‖ This legal performance,
he suggested, traveled its preordained course:
The unassailable logic of the immigration laws won the day. They had
gotten their man. He was ejected, seemingly with due process in the American way,
through the court system. Of course, objectively, the odds were massively against
him from the beginning, but the appearance was maintained, and as the judge had
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remarked, this trial played itself out.
Brotherton implies that the guarantee of due process was, at least in the
proceeding he witnessed, little more than a farce. Due process, however, is supposed
to be much more meaningful than Brotherton believes it actually was on that day.
Procedural due process, in the words of the Supreme Court in Eldridge, ―is
150
the opportunity to be heard ‗at a meaningful time and in a meaningful manner.‘‖
To determine whether procedural due process has been met, therefore, it is necessary
to determine whether proceedings are in fact ―meaningful.‖ As discussed above, in
Plasencia, the Supreme Court incorporated Eldridge’s three-pronged balancing test
into the context of immigration proceedings in an effort to guide courts in this
151
analysis. Thus, according to the Plasencia Court:
In evaluating the procedures used in any case, the courts must consider the
interest at stake for the individual, the risk of an erroneous deprivation of the interest
through the procedures used as well as the probable value of additional or different
procedural safeguards, and the interest of the government in using the current
152
procedures rather than additional or different procedures.
A. Private Interest
DHS‘s transfer policy as applied toward LPRs detained on alleged
immigration law violations implicates a substantial interest—their interest in
remaining in the United States. Thomas Jefferson, in a report to the Virginia General
Assembly, explained well the predicament encountered by individuals placed in
deportation proceedings:
If the banishment of an alien from a country into which he has been
invited . . . where he may have formed the most tender of connections, where he may
147. See Markowitz, supra note 39, at 557.
148. David C. Brotherton, Exiling New Yorkers, in KEEPING OUT THE OTHER: A CRITICAL
INTRODUCTION TO IMMIGRATION ENFORCEMENT TODAY, supra note 1, at 161, 174.
149. Id. at 175.
150. Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S.
545, 552 (1965)).
151. See Landon v. Plasencia, 459 U.S. 21, 34 (1982) (applying Eldridge, 424 U.S. at 33435).
152. Landon, 459 U.S. at 34 (discussing Eldridge, 424 U.S. at 334-35).

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have vested his entire property and acquired property . . . and where he may have
nearly completed his probationary title to citizenship . . . if a banishment of this sort
be not a punishment, and among the most severest of punishments, it will be difficult
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to imagine a doom to which the norms can be applied.
Various justices of the Supreme Court have echoed Jefferson‘s thoughts. In
1948, for example, Justice William O. Douglas, writing for a unanimous Supreme
Court, explained, ―deportation is a drastic measure and at times the equivalent of
154
banishment or exile.‖ Even without characterizing deportation as banishment, the
Plasencia Court described a LPR‘s interest in ―the right ‗to stay and live and work in
155
this land of freedom‘‖ as ―without question, a weighty one.‖ Similarly, Justice
Thurgood Marshall, in his separate opinion in Plasencia, concluded that LPRs have a
156
―substantial interest in remaining in this country.‖ This ―weighty‖ or ―substantial‖
157
interest, naturally, is at stake in deportation proceedings.
That LPRs frequently have established deep roots in the United States
158
makes the sting of deportation that much more intense. In a 1950 due process
decision, the Supreme Court explained that a non-citizen‘s constitutional rights are
linked to her ties to the United States:
The alien . . . has been accorded a generous and ascending scale of rights as
he increases his identity with our society. Mere lawful presence in the country
creates an implied assurance of safe conduct and gives him certain rights; they
become more extensive and secure when he makes preliminary declaration of
intention to become a citizen, and they expand to those of full citizenship upon
naturalization. During his probationary residence, this Court has steadily enlarged his

153. Jim Rosenfeld, Deportation Proceedings and Due Process of Law, 26 COLUM. HUM.
RTS. L. REV. 713, 744 (1995) (quoting Mr. James Madison‘s Report, General Assembly of Virginia (Jan.
7, 1800), reprinted in The Virginia Commission on Constitutional Government, The Kentucky-Virginia
Resolutions and Mr. Madison‘s Report of 1799, 34).
154. Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948). Years later, this time in a dissent joined
by Justice Abraham Fortas, Douglas reiterated his belief that ―[d]eportation is the equivalent to
banishment or exile.‖ See Boutilier v. INS, 387 U.S. 118, 132 (1967) (Douglas, J., dissenting). The
Supreme Court recently repeated the Fong Haw Tan characterization of deportation as a ―drastic
measure.‖ Padilla v. Kentucky, 559 U.S. __, 130 S. Ct. 1473, 1478 (2010) (quoting Fong Haw Tan, 333
U.S. at 6).
155. See Landon, 459 U.S. at 34 (quoting Bridges v. Wixon, 326 U.S. 135, 154 (1945)).
156. See id. at 41 (Marshall, J., concurring in part and dissenting in part); see also
Avramenkov v. INS, 99 F. Supp. 2d 210, 215-16 (D. Conn. 2000) (holding that ―because there was a
strong likelihood that the [immigrant] petitioners might be entitled to remain in the country under [INA] §
212(c), a significant liberty interest was implicated . . . .‖).
157. See Landon, 459 U.S. at 41 (Marshall, J., concurring in part and dissenting in part).
158. Justice David Brewer made this point quite poignantly in his dissenting opinion in Fong
Yue Ting v. United States, 149 U.S. 698, 734 (Brewer, J., dissenting). Fong Yue Ting involved the
Supreme Court‘s first foray into the federal government‘s power to deport non-citizens. Justice Brewer
dissented in part because he believed that the federal government lacked the authority to deport ―resident
aliens.‖ Id. at 738 (Brewer, J., dissenting). He vividly argues that long-term residents, because of their
developed attachments to this country, are in a constitutionally distinct position from short-term visitors:
―That those who have become domiciled in a country are entitled to a more distinct and larger measure of
protection than those who are simply passing through, or temporarily in, it, has long been recognized by
the law of nations.‖ Id. at 734 (Brewer, J., dissenting). Similarly, the Court that held in the Japanese
Immigrant Case that the Due Process Clause extends to non-citizens was swayed in part by the fact that,
within the one year during which immigration officials were statutorily allowed to deport people meeting
specified criteria, non-citizens could ―become subject in all respects to its [the country‘s] jurisdiction, and
a part of its population.‖ See Yamataya v. Fisher (Japanese Immigrant Case) 189 U.S. 86, 101 (1903).

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right against Executive deportation except upon full and fair hearing.
This ―scale of rights‖ reflects the notion that immigrants were thought to be
160
―transitioning‖ into citizenship. The Supreme Court, according to immigration law
scholar Hiroshi Motomura, during the mid-twentieth century ―articulated an
important public value: lawful immigrants, at least while en route to citizenship, are
161
treated like citizens because they are Americans in waiting.‖
B. Risk of Erroneous Deprivation
The risk that LPRs‘ substantial interest in remaining in the United States
will be erroneously deprived is sizeable under current deportation procedures and
goes to the heart of a due process analysis in these circumstances. First, the current
transfer procedure severely undermines detainees‘ relationship with potential and
existing counsel. Second, access to counsel has never before been as important in
deportation proceedings as it is today.
LPRs may be placed into deportation proceedings for allegedly violating
162
any number of immigration laws. An increasingly common reason that deportation
proceedings are initiated against LPRs, however, is due to a conviction for a criminal
163
offense. As part of the deportation process, LPRs are afforded a statutory right to
164
counsel and, as all federal courts of appeal that have considered the issue have
165
suggested, a constitutionally derived right to retain counsel at their own expense.
159. Johnson v. Eisentrager, 339 U.S. 763, 770-71 (1950). Though Johnson did not involve
LPRs, the Court quoted this passage three years later in a case that did involve the due process rights of a
LPR. See Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n.5 (1953).
160. See HIROSHI MOTOMURA, AMERICANS IN WAITING: THE LOST STORY OF IMMIGRATION
AND CITIZENSHIP IN THE UNITED STATES 8 (2006).
161. Id. at 123.
162. See INA § 237(a) (providing an extensive list of offenses that render ―[a]ny alien‖
deportable, including LPRs); DAN KESSELBRENNER & LORY D. ROSENBERG, IMMIGRATION LAW &
CRIMES § 1:5 (2009) (―All noncitizens, including LPRs, are subject to immigration consequences if they
are found to have violated the immigration laws. Permanent residents, like all other noncitizens, may be
―removed,‖ i.e., deported, or expelled from the United States as the result of such violations.‖). DHS,
through its staff attorneys, files a charging document with the Immigration Court and serves the
immigrant. See INA § 239(a) (listing the required contents of the charging document, typically referred to
as a Notice to Appear); 8 C.F.R. § 1003.14(a) (explaining that proceedings formally begin ―when a
charging document is filed with the Immigration Court‖). On its face, an Immigration Court proceeding
resembles a standard adversarial hearing. See, e.g., Anna MARIE GALLAGHER AND MARIA BALDINIPOTERMIN, IMMIGRATION TRIAL HANDBOOK 5:3 (sketching typical procedures during the Master
Calendar hearing). Courtrooms tend to have a section for the public that is divided from the rest of the
courtroom by a rail, judges appear in dark robes, and some type of uniformed security official watches
over the room. Substantively, witnesses are placed under oath, evidence is presented to the Immigration
Judge, see § 240(b)(1), determinations are made, in theory at least, after parsing the language of statutes,
regulations, and case law, see § 240(c)(1)(A), and decisions are appealable to a separate, higher body, the
Board of Immigration Appeals. 8 C.F.R. § 1003.38(a); see § 240(c)(5) (noting right to appeal).
163. See Stephen Legomsky, The New Path of Immigration Law: Asymmetric Incorporation
of Criminal Justice Norms, 64 WASH. & LEE L. REV. 469, 482 (2007) (generally addressing the increasing
number of criminal convictions that may result in deportation).
164. See INA § 292, 8 U.S.C. § 1362; 8 C.F.R. § 1003.16(b).
165. See Frech v. U.S. Att‘y Gen., 491 F.3d 1277, 1281 (11th Cir. 2007) (quoting Saakian v.
INS, 252 F.3d 21, 24 (1st Cir. 2001)); Ponce-Leiva v. Ashcroft, 331 F.3d 369, 374 (3d Cir. 2003) (citing
Upsango v. Ashcroft, 289 F.3d 226, 231 (3d Cir. 2002)); United States v. Torres-Sanchez, 68 F.3d 227,
230 (8th Cir. 1995); Batanic v. INS, 12 F.3d 662, 667 (7th Cir. 1993) (quoting Castaneda-Delgado v. INS,
525 F.2d 1295, 1302 (7th Cir. 1975)); Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir. 1985) (citing
United States v. Barraza-Leon, 575 F.2d 218, 220 (9th Cir. 1978)); see also United States v. Cerna, 603

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Unlike the Sixth Amendment right to counsel in criminal proceedings — which does
not apply to immigration court proceedings because they are characterized as
166
civil — the right to counsel in the deportation context stems from the Fifth
167
Amendment‘s Due Process Clause. As the U.S. Court of Appeals for the Eleventh
Circuit held, ―[t]he right to counsel in the immigration context is ‗an integral part of
168
the procedural due process to which the alien is entitled.‘‖ That is, this right to
counsel is recognized in an effort to abide by Fifth Amendment standards of due
F.3d 32, 42-43 (2nd Cir. 2010) (analyzing a claim of ineffective assistance of counsel arising from
immigration proceedings for a potential due process violation); Huicochea-Gomez v. INS, 237 F.3d 696,
699 (6th Cir. 2001) (same); Akinwunmi v. INS, 194 F.3d 1340, 1341 n.2 (10th Cir. 1999) (per curiam)
(same); Figueroa v. INS, 886 F.2d 76, 78 (4th Cir. 1989) (same); Paul v. INS, 521 F.2d 194, 197 (5th Cir.
1975) (quoting Barthold v. INS, 517 F.2d 689, 690 (5th Cir. 1975)) (explaining that ―any right [to
counsel] an alien may have in this regard is grounded in the fifth amendment guarantee of due process
rather than the sixth amendment right to counsel.‖). Though a subsequent Fourth Circuit panel disagreed
with Figueroa by holding that counsel‘s alleged ineffective assistance could not violate an immigrant‘s
Fifth Amendment due process rights because the attorney was not a state actor, the Supreme Court vacated
that panel‘s decision. Afanwi v. Mukasey, 526 F.3d 788, 797-99 & n.48 (4th Cir. 2008), vacated, 130 S.
Ct. 350 (2009). Had the Supreme Court not done so, however, Afanwi conceivably left room for a due
process claim stemming from DHS‘s transfer practice given that DHS is undoubtedly a state actor. See
Afanwi, 526 F.3d at 799 n.47. ―The statutory right to counsel reflects the constitutional mandate of due
process.‖ Masters, supra note 15, at 1012.
It is less clear whether individuals in deportation proceedings are ever entitled to have counsel
at the government‘s expense. One circuit requires an individualized determination that inquires into
whether the appointment of counsel is necessary to ensure fundamental fairness. See Aguilera-Enriquez v.
INS, 516 F.2d 565, 568 (6th Cir. 1975). In addition, right to counsel procedural due process claims, it
appears, must first be raised in administrative proceedings. See Aguilar v. ICE, 510 F.3d 1, 13-14 (1st Cir.
2007). Only after exhausting all administrative options may an immigrant appeal to the appropriate federal
court of appeal. See id. The Aguilar Court left open the possibility that a substantive due process claim
might be brought initially in the federal district court. See id. at 20-21.
Not long ago the First Circuit held that ―aliens have no constitutional right to counsel in
removal proceedings‖ before noting, ―[b]ut aliens nonetheless are entitled to due process‖ and recognizing
a statutory right to counsel. Id. at 13. For support, the Aguilar Court cited two decisions, one from the
First Circuit and another from the Supreme Court, neither of which stands for the proposition that there is
no constitutional right to counsel in removal proceedings. The Supreme Court decision, United States v.
Lopez-Mendoza, as the Aguilar Court correctly noted in a parenthetical, reiterated the none too revelatory
pronouncement that ―[c]onsistent with the civil nature of the proceeding, various protections that apply in
the context of a criminal trial do not apply in a deportation hearing.‖ United States v. Lopez-Mendoza,
468 U.S. 1032, 1038 (1984); see Aguilar, 510 F.3d at 13. Likewise, the First Circuit‘s decision in Lozada
v. INS explained, ―Because deportation proceedings are deemed to be civil, rather than criminal, in nature,
petitioners have no constitutional right to counsel under the Sixth Amendment.‖ Lopez v. INS, 857 F.2d
10, 13 (1st Cir. 1988); see Aguilar, 510 F.3d at 13. Neither Lopez-Mendoza nor Lopez stand for anything
other than the rudimentary proposition that there is a distinction between civil and criminal proceedings
and that the Sixth Amendment right to counsel only applies to criminal proceedings. Moreover, the
Aguilar Court failed to explain how its announcement comports with the First Circuit‘s decision in
Saakian v. INS in which the court announced that the statutory right to counsel in deportation proceedings
―is ‗an integral part of the procedural due process to which the alien is entitled.‘‖ Saakian, 252 F.3d at 24;
see Aguilar, 510 F.3d at 13-14.
166. See Lopez-Mendoza, 468 U.S. at 1038.
167. See Ponce-Leiva v. Ashcroft, 331 F.3d 369, 374 (3d Cir. 2003) (citing Upsango v.
Ashcroft, 289 F.3d 226, 231 (3d Cir. 2002)); United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir.
1995); Jiang v. Houseman, 904 F. Supp. 971, 978 (D. Minn. 1995); Nunez v. Boldin, 537 F. Supp. 578,
582 (S.D. Tex. 1982); Note, INS Transfer Policy: Interference with Detained Aliens’ Due Process Right to
Retain Counsel, 100 HARV. L. REV. 2001, 2007 (1987).
168. Frech v. U.S. Att‘y Gen., 491 F.3d 1277, 1281 (11th Cir. 2007) (quoting Saakian v. INS,
252 F.3d 21, 24 (1st Cir. 2001)); see also Ex Parte Chin Loy You, 223 F. 833, 838-39 (D. Mass. 1915)
(explaining that the right to counsel does not depend on whether the proceeding is termed ―civil‖ or
criminal because the assistance of counsel is ―essential to any fair trial,‖ including an administrative
deportation hearing).

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process — namely, the fundamental fairness that procedural due process seeks to
170
protect.
As part of the deportation process, DHS‘s current policy allows it to transfer
detained individuals for several legitimate reasons — ―to prevent overcrowding, to
171
meet a detainee‘s special needs, for medical reasons, or security related reasons.‖
ICE‘s detention standards require ICE staff to notify a detainee‘s attorney-of-record
of an impending transfer, notify the attorney again when the detainee has arrived at
the new location, and provide the attorney with contact information for the new
172
facility. All this must be done ―as soon as practicable, but no later than 24 hours
173
after the transfer.‖
Despite the policy‘s pro forma attempt to protect a detainee‘s relationship
with her or his counsel, various courts have suggested that the Fifth Amendment
right to counsel is severely impeded by transferring immigration detainees to prisons
located at great distance from their place of residence and in rural locations. In
perhaps the most forceful proclamation yet, Justice David Souter lamented: ―After
all, our recognition that the serious penalty of removal must be justified on a
heightened standard of proof will not mean all that much when the INS can detain,
174
transfer, and isolate aliens away from their lawyers, witnesses, and evidence.‖
Similarly, in Rios-Berrios v. INS, a case involving an individual who was arrested by
INS officials near San Diego only to be transferred to an immigration prison near
Miami, the Ninth Circuit explained:
We merely say that his transfer here, combined with the
unexplained haste in beginning deportation proceedings, combined
with the fact of petitioner‘s incarceration, his inability to speak
English, and his lack of friends in this country, demanded more
than lip service to the right of counsel declared in statute and
agency regulations, a right obviously intended for the benefit of
175
aliens in petitioner‘s position.
In another case—this time a 1988 decision in a class action lawsuit
stretching over several decades—a federal district court found that ―[c]lass members,
where transferred, have been . . . kept incommunicado for extended periods of time.
It is common that INS deprives class members of address books and telephone
numbers in the course of transfer, such that transfer serves to place them completely
169. See Ponce-Leiva, 331 F.3d at 374 (citing Upsango, 289 F.3d at 231).
170. See Lassiter v. Dep‘t. of Social Services, 452 U.S. 18, 24-25 (1981); See also Jiang v.
Houseman, 904 F. Supp. 971, 978 (D. Minn. 1995).
171. AILA-ICE Liaison Meeting Minutes (May 30, 2008), AILA InfoNet Doc. No. 08121820,
at 4.
172. See Dep‘t of Homeland Security, Immigration and Customs Enforcement, Operations
Manual ICE Performance Based National Detention Standards § V.B.1 [hereinafter ICE Detention
Standards].
173. Id.
174. Demore v. Kim, 538 U.S. 510, 554 (2003) (Souter, J., concurring in part and dissenting in
part) (internal citations omitted).
175. Rios-Berrios v. INS, 776 F.2d 859, 863 (9th Cir. 1985). In Chlomos v. INS, a case
concerning an individual who resided in and retained an attorney in New Jersey but was detained by the
INS in Florida the U.S. Court of Appeals for the Third Circuit explained that an immigrant‘s ―difficulty in
securing his lawyer‘s presence at the hearing was complicated by the fact that the government chose to
have the hearing in Florida rather than in New Jersey.‖ See 516 F.2d 310, 313-14 (3d Cir. 1975).

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176

out of touch with friends and relatives who could assist them.‖ Summarizing this
conclusion on appeal, the Ninth Circuit explained, ―The court also found that aliens
were frequently detained far from where potential counsel or existing counsel were
177
located . . . . These findings were not challenged.‖
Several commentators have expressed similar sentiments. Professor
Margaret H. Taylor, describing the state of immigration detention in the mid-1990s
in words that ring true today, explained: ―INS policies do not encourage detention in
places where detainees are likely to have access to family support and legal services.
Many INS detention facilities are in isolated locations, far away from major
population centers. INS officers routinely send aliens to these remote facilities
(sometimes without notification to the attorney of record) without regard to the
potential impact of such dislocation on their access to counsel and their ability to
178
develop a claim for relief.‖ Many other commentators writing since the 1980s
179
have reiterated Taylor‘s perspective.
The disruption that transfers cause to detainees‘ ability to retain counsel or
communicate with counsel is only heightened by the federal government‘s persistent
and continuing failure to institute procedures that, at a minimum, seek to preserve
detainees‘ access to counsel, or even to follow its own stated policy. As early as
1990, the Ninth Circuit found ―substantial‖ evidence indicating ―that INS routinely
180
does not notify attorneys that their clients have been transferred.‖ Almost twenty
years later, the DHS Inspector General, reviewing ICE‘s compliance with the current
transfer policy, reported that ―ICE staff interviewed at the sites visited said they did
not notify the detainee‘s legal representative because they considered the
181
notifications to be the detainee‘s responsibility.‖ Indeed, the Inspector General
found that the Detainee Transfer Notification form, a one-page form that ICE
officials are required to fill out upon any transfer, ―was not properly completed for
182
143 of the 144 transfers we tested.‖ As the Inspector General added, ―[a]gency
staff interviewed generally considered completing and providing copies of the
183
transfer forms to detainees a low priority.‖ The agency is only now ―attempting to
184
develop a pilot program to alleviate many of these issues‖ caused by transfers.
176. Orantes-Hernandez v. Meese, 685 F. Supp. 1488, 1500 (C.D. Cal. 1988) (Orantes I),
aff’d. 919 F.2d 549 (9th Cir. 1990). Almost twenty years later, in 2007, the same court, considering the
same class action lawsuit, decided to keep in place an injunction due to ―evidence that at detention
facilities for which reports were produced there have been a significant number of violations of critical
provisions of the injunction dealing with detainees‘ access to legal materials, telephone use, and attorney
visits.‖ Orantes-Hernandez v. Gonzales, 504 F. Supp. 2d 825, 875 (C.D. Cal. 2007) (Orantes III).
177. Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 565 (9th Cir. 1990) (Orantes II).
178. Taylor, supra note 37, at 1670-71.
179. See IACHR Visits Detention Facilities, supra note 32; see also Michael Kaufman, Note,
Detention, Due Process, and the Right to Counsel in Removal Proceedings, 4 STAN. J. C.R. & C.L. 113,
116 (2008) (―For those [immigration detainees] who attempt to find representation, the remote location of
detention facilities, [and] transfers . . . impede access to counsel. Detention thus not only deprives
noncitizens charged with immigration violations of their liberty, but also impairs their ability to prepare a
case against removal.‖); Masters, supra note 15, at 1012 (―The right to counsel is seriously affected when
the alien is transferred far from his home.‖).
180. Orantes II, 919 F.2d at 566.
181. See ICE’s Tracking and Transfers, supra note 27, at 8.
182. Id. at 1.
183. Id.
184. See AILA-ICE Liaison Meeting Minutes (May 30, 2008), AILA InfoNet Doc. No.
08121820, at 3 (on file with the author). The Online Detainee Locator System (ODLS), a publicly

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The increased complexity of immigration laws means that transferring
detained LPRs, and thereby depriving them of counsel, presents a significant risk to
185
the erroneous deprivation of their right to remain in the United States. The Ninth
Circuit fittingly characterized removal proceedings as a ―maze‖ of ―immigration
rules and regulations‖ that involves ―high stakes,‖ namely, an individual‘s
186
authorization to remain in this country. The increased number of criminal offenses
that may render an individual removable has resulted in enormous ambiguity about
187
whether certain crimes even render an individual deportable,
all the while
188
―dramatically rais[ing] the stakes of a noncitizen‘s criminal conviction.‖ Crimes
that do not constitute deportable offenses one day sometimes become deportable
offenses another day, and conduct that once constituted a civil violation suddenly
189
becomes a criminal act. On other occasions, crimes for which an individual is
accessible web-based search tool released in the summer of 2010, promises to ―allow[] family members,
legal representatives, and members of the public, to locate immigration detainees who are in ICE
detention.‖ U.S. Dept. of Homeland Security, Imm. & Customs Enforcement, Online Detainee Locator
System: How Do I Locate Someone in Immigration Detention? (June 2010), http://
www.ice.gov/doclib/news/library/factsheets/pdf/odls-brochure.pdf. The ODLS is limited, however, by
ICE‘s ability to keep its own records updated. Moreover, DHS explicitly states, ―ODLS does not provide
information about transfers that are planned or in progress. Once a person is transferred and booked into
another ICE detention facility, ODLS will be updated with that information.‖ U.S. Dept. of Homeland
Security,
Imm.
&
Customs
Enforcement,
About
the
Detainee
Locator/FAQs,
https://locator.ice.gov/odls/about.jsp (last visited Aug. 21, 2010). Only time will tell how well this
resource keeps attorneys informed of their client‘s whereabouts.
185. See Laura Sullivan, Enforcing Nonenforcement: Countering the Threat Posed to
Sanctuary Laws by the Inclusion of Immigration Records in the National Crime Information Center
Database, 97 CAL. L. REV. 567, 571 (2009) (explaining that immigration law has become more complex
since the 1970s). Margaret H. Taylor argues that, ―Despite the present dearth of empirical evidence,
however, there can be no doubt that attorneys influence the outcome of removal proceedings, especially in
circumstances where an alien has a viable ground to contest deportation or is eligible for some form of
relief.‖ Taylor, supra note 37, at 1666-67.
186. See Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005). In another case, the Ninth
Circuit likened asylum regulations, a subset of immigration law, to ―a labyrinth almost as impenetrable as
the Internal Revenue Code.‖ Escobar-Grijalva v. INS, 206 F.3d 1331, 1335 (9th Cir. 2000).
187. See KESSELBRENNER & ROSENBERG, supra note 162, at § 2:1. According to
Kesselbrenner and Rosenberg, ―A broad range of criminal convictions trigger immigration consequences.
Unfortunately, a practitioner or respondent cannot tell easily whether a conviction is for a removable
offense.‖ See id.; see also Teresa A. Miller, Citizenship & Severity: Recent Immigration Reforms and the
New Penology, 17 GEO. IMMIGR. L.J. 611, 619 (2003) (―over the past twenty years there has been an
unprecedented growth in the scope of criminal grounds for the exclusion and deportation of foreign-born
non-U.S. citizens, as well as immigration crimes themselves. In other words, the harsh immigration
consequences of criminal activity such as exclusion and deportation have been expanded, as have the
criminal consequences of immigration violations (many of which were formerly treated civilly).‖). In a
recent case concerning the Sixth Amendment right to counsel, four justices recognized that the
immigration consequences of criminal convictions are sometimes unclear: ―There will…undoubtedly be
numerous situations in which the deportation consequences of a particular plea are unclear or uncertain.‖
Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010).
188. Padilla, 130 S. Ct. at 1480.
189. See Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996,
Pub. L. 104-208, Div. C., 110 Stat. 3009-546, § 321(b), at 3009-628. In relevant part, IIRIRA amended
INA § 101(a)(43), the section that lists the criminal offenses considered to be aggravated felonies, to
include ―the following new sentence: ‗Notwithstanding any other provision of law (including any effective
date), the term applies regardless of whether the conviction was entered before, on, or after the date of
enactment of this paragraph.‘‖ IIRIRA also drastically expanded the number and type of crimes
considered aggravated felonies. See IIRIRA, § 321(a), at 3009-627 to 3009-628. As such, the single
sentence added to the INA by IIRIRA § 321(b) turned criminal offenses that were not deportable offenses
prior to IIRIRA‘s passage into deportable offenses upon the statute‘s enactment. See Aleinikoff, supra
note 88, at 712; see also Miller, supra note 187, at 633 (―[W]ithin the past two decades the range of crimes

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deportable, later cease to have that effect.
The risk that LPRs will be erroneously deprived of their interest in
remaining in the United States is heightened by the common belief that individuals
who are placed into removal proceedings, especially those with a criminal record,
191
have few if any options that would allow them to remain in the United States. In
Avramenkov v. INS, for example, the U.S. District Court for the District of
Connecticut concluded that ―in light of the Petitioner‘s aggravated felony
conviction . . . additional safeguards would be of little value‖ because ―removal from
192
the country is a virtual certainty.‖ Importantly, the district court did not discuss
whether Avramenkov was eligible for any of the multiple types of relief available to
193
individuals who have been convicted of an aggravated felony.
Similarly, in
Aguilera-Enriquez v. INS, the U.S. Court of Appeals for the Sixth Circuit,
considering a case in which a LPR was ordered deported after a hearing in which he
lacked counsel, held, ―Counsel could have obtained no different administrative
194
result.‖ The Sixth Circuit summarily concluded that Aguilera-Enriquez, who was
convicted of possession of a controlled substance, was deportable ―and no defense
for which a lawyer would have helped the argument was presented to the
for which a criminal alien can be deported has expanded exponentially…. In addition to expanding the
grounds for deporting criminal aliens, recent legislation has…applied the broader range of deportable
crimes retroactively to crimes for which deportation was not a consequence previously.‖); 627 (explaining
that ―[t]he imposition of criminal sanctions for conduct that previously amounted to civil violations—in
other words, the creation of new categories of criminal offenses‖ resulted from the ―tough on crime‖
mentality that swept the policymaking circles beginning in the 1980s).
190. See Leocal v. Ashcroft, 543 U.S. 1, 5 n.2 (2004). The Leocal Court explained how an
offense that rendered Leocal an aggravated felon, and therefore removable, when Leocal filed his appeal
soon thereafter was considered to not render most people in Leocal‘s position removable—though not
Leocal because the governing federal circuit continued to hold a contrary position. See id.
191. See Taylor, supra note 37, at 1648 (―And most people would assume that an ‗illegal
alien‘ or a ‗criminal alien‘ will quickly be deported (a perception that is fueled by the somewhat menacing
connotation of the quoted phrases).‖). In contrast, the Fifth Circuit granted a motion to reopen deportation
proceedings for a person without a criminal record on the basis that her ―waiver of counsel was not
‗competently and understandingly made‘‖ and ―the outcome of the proceeding may have been different if
counsel had been present.‖ See Partible v. INS, 600 F.2d 1094, 1096 (5th Cir. 1979) (quoting Matter of
Gutierrez, 16 I&N Dec. 226, 228 (BIA 1977)). Though Partible waived, on the record, her right to
counsel, the Fifth Circuit determined that she did not do so ―with any understanding by the immigration
judge of the complexity of her dilemma and without any awareness of the cogent legal arguments which
could have been made on her behalf and which her present counsel now presses in arguing for the
reopening of her proceeding.‖ Id.
192. See Avramenkov v. INS, 99 F. Supp. 2d 210, 216 (D. Conn. 2000).
193. See, e.g., INA § 241(b)(3)(A) (prohibiting removal under certain conditions except for
individuals convicted of particularly serious crimes and other exceptions not relevant here); Matter of NA-M-, 24 I&N Dec. 336, 340 (BIA 2007) (explaining that Congress ―eliminated the categorical exception
to withholding of removal for any alien convicted of an aggravated felony…. Particularly serious crimes
and aggravated felonies are no longer automatically linked for purposes of withholding of removal except
for aggravated felonies for which the alien has been sentenced to an aggregate term of imprisonment of at
least 5 years.‖); INA § 249 (setting forth the requirements for ―registry,‖ a form of relief from removal
available to certain individuals who were in the USA prior to January 1, 1972 and notably lacking a bar to
eligibility for aggravated felons); Matter of Meza, 20 I&N Dec. 257, 259 (BIA 1991) (holding that certain
aggravated felons may be eligible for relief under the now-repealed INA § 212(c)); INS v. St. Cyr, 533
U.S. 289, 326 (2001) (holding that the repeal of INA § 212(c) does not apply retroactively, therefore
individuals meeting certain conditions may continue to seek relief from removal under former § 212(c));
Gerald Seipp, The Aggravated Felony Concept in Immigration Law: Traps for the Unwary and
Opportunities for the Knowledgeable, 02-01 Immigr. Briefings 1 (Jan. 2002) (providing several ideas for
challenging aggravated felony charges and options for relief that remain available for aggravated felons).
194. See Aguilera-Enriquez v. INS, 516 F.2d 565, 569 (6th Cir. 1975).

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Immigration Judge for consideration.‖ The Sixth Circuit‘s reasoning is circuitous.
It concludes that a lawyer would have made no difference because AguileraEnriquez, unassisted by counsel, did not make an argument to the Immigration Judge
that a lawyer might have made. The very purpose of retaining trained counsel is to
identify potential avenues of relief precisely because alone an untrained defendant
should not be expected to do so.
Even if a LPR is found to be removable, there exist myriad options for
196
197
relief: Cancellation of Removal for LPRs, Withholding of Removal, Temporary
198
199
Protected Status, readjustment of status, and other relief options. Each has its
own eligibility criteria. Many forms of relief involve discretionary determinations by
an immigration judge. Where that is the case, an attorney is crucial in developing a
record of the immigrant‘s equities, including communicating with family, friends,
and employers who may be able to provide letters of support, financial records, proof
200
of residency, or other evidence that may assist the individual facing removal. An
LPR who is placed in removal proceedings cannot possibly be expected to navigate
this maze without the assistance of counsel. Doing so presents a grave risk that an
individual who might have a legal basis for remaining in the United States is
deported for no other reason than an inability to access counsel.
The little empirical evidence that exists regarding the actual efficacy of
immigration attorneys suggests that representation does matter. In a report prepared
by the Board of Immigration Appeals (Board or BIA) evaluating the first three years
of the BIA Pro Bono Project, the Board announced that ―when a pro se detained
alien filed an appeal with the Board, and then secured pro bono counsel through the
project, the alien respondent was three-to-four times more likely to win a favorable
201
decision than those who represent themselves during the appellate process.‖ When
considering outcomes in appeals filed by DHS as well as those filed by immigrants,
the report concluded, ―When examining total outcomes, regardless of who filed the
appeal, the study data shows that in the Board‘s overall caseload, self-represented,
detained aliens get a favorable decision in one-in-ten case appeals (10 percent of the
202
time).‖ In comparison, ―40 percent of completed [Pro Bono Project] cases appear
203
to result in a favorable decision for the alien.‖ The Transactional Records Access
195. See id.
196. See INA § 240A(a), 8 U.S.C. § 1229b.
197. See INA § 241(b)(3), 8 U.S.C. § 1231(b)(3).
198. See INA § 244, 8 U.S.C. 1254a.
199. See Matter of Mendez-Moralez, 21 I&N Dec. 296, 298 (BIA 1996) (holding that a LPR
in deportation proceedings may apply for adjustment of status to that of LPR pursuant to INA § 245).
200. See Taylor, supra note 37, at 1666-67.
201. BOARD OF IMMIGRATION APPEALS, THE BIA PRO BONO PROJECT IS SUCCESSFUL 12
(Oct. 2004), available at www.usdoj.gov/eoir/reports/BIAProBonoProjectEvaluation.pdf [hereinafter BIA
PRO BONO PROJECT]. The Board reported that twenty-two percent of immigrants who filed an appeal pro
se then secured counsel through the project won compared to seven percent who filed proceeded entirely
pro se. See id. According to an American Bar Association report released in 2004 ―only ten percent of
people detained by ICE secure legal representation in their cases.‖ See AM. BAR ASS‘N COMM‘N ON
IMMIGRATION, IMMIGRATION DETAINEE PRO BONO OPPORTUNITIES GUIDE 1 (2004),
http://www.abanet.org/publicserv/immigration/probonoguidefinal.pdf.
202. BIA PRO BONO PROJECT, supra note 201, at 12.
203. Id. This success rate accurately reflects the recent findings of the City Bar Justice Center,
a pro bono legal services affiliate of the New York City Bar Association. The Justice Center reported that
of 158 detainees counseled at the Varick Federal Detention Facility in Manhattan over a seven-month
period by volunteers ―39.2% of the detainees had possible meritorious claims for relief.‖ See NYC KNOW

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Clearinghouse (TRAC), a research organization at Syracuse University, similarly
found that representation improves an immigrant‘s likelihood of winning in the
asylum context. Analyzing asylum data from 1994 to 2005, TRAC concluded that
―an important determining factor in the decision process is the presence or absence
204
of legal representation.‖
Specifically, TRAC reported that 93.4% of asylum
applicants who proceeded without an attorney were denied while only 64% of
205
asylum applicants who were represented were denied.
C. Government’s Interest
The impact that DHS‘s transfer policy has on LPR detainees‘ interest in
remaining in the United States and the substantial risk of erroneous deprivation of
that interest presented by a transfer procedure that impedes access to counsel must be
weighed against ―the interest of the government in using the current procedures
206
rather than additional or different procedures.‖ According to an explanation that
ICE provided AILA representatives, transfers, though not preferred by the agency,
are necessary because of ―the number of beds available . . . especially in the
Northeast. Some bed space is more expensive than others. For example, the average
207
cost for ICE is $95/bed/night, but, in the Northeast, the cost is $200/bed/night.‖
The government‘s stated interest, therefore, is in reducing costs, which can
be achieved by housing detainees in less expensive regions. Unquestionably,
financial concerns are always worthy of consideration in the procedural due process
calculus. As Judge Henry J. Friendly explained in his famous article about the type
of hearing required in an administrative proceeding:
It should be realized that procedural requirements entail the expenditure of
limited resources, that at some point the benefit to individuals from an additional
safeguard is substantially outweighed by the cost of providing such protection, and
that the expense of protecting those likely to be found undeserving will probably
208
come out of the pockets of the deserving.
Friendly‘s instruction merely reflects common sense fiscal limitations: the
more elaborate procedures become, the more they are financially burdensome.
Courts do well to heed this simple reality. As the Eldridge Court noted, ―the
Government‘s interest, and hence that of the public, in conserving scarce fiscal and
209
administrative resources is a factor that must be weighed.‖
The government‘s financial interest, however, is not determinative of the
procedural due process analysis. In Eldridge, the Court explicitly acknowledged that
financial concerns are to be considered in the due process analysis as it
simultaneously explained that cost considerations alone do not control the

YOUR RIGHTS PROJECT, supra note 111, at 2.
204. Transactional
Records
Access
Clearinghouse,
Immigration
Judges,
http://trac.syr.edu/immigration/reports/160/.
205. See Transactional Records Access Clearinghouse, Immigration Judges,
http://trac.syr.edu/immigration/reports/160/.
206. See Landon v. Plasencia, 459 U.S. 21, 34 (1982) (discussing Mathews v. Eldridge, 424
U.S. 319, 334-35 (1976)).
207. See AILA/ICE Liaison Meeting Minutes, 6 (Dec. 12, 2007), AILA InfoNet Doc. No.
08030662 (on file with author).
208. Henry J. Friendly, “Some Kind of Hearing,” 123 U. PA. L. REV. 1267, 1276 (1975).
209. Eldridge, 424 U.S. at 348.

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analysis. ―Financial cost alone is not a controlling weight in determining whether
due process requires a particular procedural safeguard prior to some administrative
211
decision,‖ the Court announced. Cost, the Court says, is simply one factor that,
like any other governmental interest, courts must weigh against the individual‘s
interest and the risk of erroneous deprivation.
The Supreme Court has followed this guidance in other administrative
contexts. Most pertinently, in Lassiter v. Department of Social Services, a case
concerning a parent‘s right to appointed counsel in a parental rights termination
hearing, the Court reiterated that the government‘s financial concern is worthy of
212
consideration but it ought to be treated just as any other governmental interest.
Financing the appointment of counsel in parental rights termination proceedings
clearly stood to add a measurable cost to the government coffers. The Lassiter Court
considered another factor that, though not explicitly enunciated by DHS or ICE
deserves attention—namely, the involvement of attorneys usually means that
proceedings are prolonged and a longer proceeding adds to the financial cost of the
213
legal proceedings.
As the Court surmised, ―The State‘s interests . . . clearly
diverge from the parent‘s insofar as the State wishes the termination decision to be
made as economically as possible and thus wants to avoid both the expense of
appointed counsel and the cost of the lengthened proceedings his presence may
214
cause.‖ This interest in a cost-efficient determination, the Court explained, is
215
entirely ―legitimate.‖ But,
it is hardly significant enough to overcome private interests as
important as those here, particularly in light of the concession in
the [government] respondent‘s brief that the ‗potential costs of
appointed counsel in termination proceedings . . . is [sic]
admittedly de minimis compared to the costs in all criminal
216
actions.‘
Reflecting the importance of examining the actual costs of appointing
counsel in parental termination proceedings, the Court ultimately concluded that the
decision whether to appoint counsel to satisfy due process requirements must be
made by a trial court since they have a greater ability in developing an evidentiary
210. Id.
211. Id.
212. See Lassiter v. Dep‘t. of Soc. Serv., 452 U.S. 18, 28 (1981).
213. See id.; but see Markowitz, supra note 39, at 564 (arguing that sound counseling may
decrease costs associated with immigration court proceedings and detention operations because attorneys
would be able to advise immigrants that they stood little chance of success, thus increasing their incentive
to agree to deportation or voluntary departure).
Margaret H. Taylor discusses competing theories about the cost-effectiveness of representation
in immigration proceedings. On the one hand, she posits, ―providing accurate information early on in the
process may help reduce detention stays for those with no viable argument their impending removal. A
brief consultation with a representative from the Florence Project [a non-governmental immigration
representation organization in Florence, Arizona] convinces some detainees to accept immediate
deportation, rather than waiting weeks or months to hear an immigration judge reach the same inevitable
conclusion.‖ Taylor, supra note 37, at 1697-98. On the other hand, ―detained aliens retain lawyers to
oppose the government‘s efforts to remove them from the country. This is the inevitable sticking point in
the argument that providing legal advice to INS detainees promotes efficient enforcement.‖ Id. at 1709.
214. Lassiter, 452 U.S. at 28.
215. See id.
216. Id.

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record.

Though courts consistently account for the government‘s financial interest
when considering this third prong of the Eldridge analysis, scholars have questioned
whether the cost to the government in dollars is an appropriate component of the due
process analysis at all. Jerry L. Mashaw succinctly asks, ―[c]an the dignitary costs of
individuals and the administrative costs of government, for example, be measured in
218
the same currency?‖ Margaret Taylor presents a related, though broader, criticism.
Taylor‘s principal concern is not whether representation increases or decreases the
efficiency of removal proceedings. Rather, her concern is that the focus on efficiency
will override the concern for fairness and justice: ―In the final analysis, the
government‘s interests in promoting legal representation for detained aliens should
not be defined narrowly, to encompass only ‗efficient‘ enforcement. Policy makers
and immigration officials should also recognize procedural fairness and just results
219
as important goals.‖
D. Due Process is Violated
As the Plasencia Court wrote, the government‘s interest in the ―efficient
administration of the immigration laws‖ should be measured in light of the
explanation offered by ICE as well as the explanation suggested by the Lassiter
Court. According to ICE, transfers are necessary because housing costs in the
220
Northeast are more than double what they are nationwide.
As explained
previously, the Lassiter Court also recognized that the government has an interest in
221
reaching a decision ―as economically as possible.‖ Attorneys, the Court added,
222
lengthen proceedings and, thus, increase the cost of proceedings. The Lassiter
Court‘s calculus suggests that these economic interests, though legitimate, are not
sufficiently substantial as to outweigh LPRs‘ interest in fully informed and accurate
deportation determinations. In Lassiter, the Court concluded that the government‘s
interest was minimal where the cost to the government would have included actually
223
paying for appointed counsel. After acknowledging that lawyers would prolong
the administrative process, the Lassiter Court nonetheless found that the resulting
expense was ―hardly significant‖ in comparison to the individual interest at stake in
224
that case—namely, parental rights.
Likewise, deportation proceedings implicate LPRs‘ ―substantial‖ interest in
225
remaining in the United States.
Moreover, as courts and the DHS Inspector
226
General report, ICE often fails to follow its own policy. The transfer procedures as
they are actually effectuated regularly impinge the interests of LPRs insofar as

217. See id. at 31-32.
218. MASHAW, supra note 48, at 47.
219. Taylor, supra note 37, at 1710.
220. See AILA/ICE Liaison Meeting Minutes, 6 (Dec. 12, 2007), AILA InfoNet Doc. No.
08030662 (on file with author).
221. See Lassiter v. Dep‘t. of Soc. Serv., 452 U.S. 18, 28 (1981).
222. See id.
223. See id.
224. See id.
225. See Landon v. Plasencia, 459 U.S. 21, 41 (1982) (Marshall, J., concurring in part and
dissenting in part).
226. See ICE’s Tracking and Transfers, supra note 27, at 1.

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transfers impede communication with potential and existing counsel. In comparison,
cessation of DHS‘s transfer procedures is likely to require the government to pay up
227
to twice as much to detain LPRs. DHS—and the Department of Justice given that
Immigration Court staff, including Immigration Judges, are Department of Justice
employees—would also have to shoulder the added cost of deportation proceedings
that are longer and, in all likelihood, more adversarial because of the advocacy of
228
attorneys on behalf of detainees.
Due process, therefore, requires that immigrant detainees be afforded a
reasonable opportunity to secure counsel so as to decrease the likelihood that their
229
substantial interest in remaining in the United States is not erroneously deprived.
Several courts have recognized the veracity of applying such an analysis. A federal
district court in Florida, for example, took into account that Haitian immigration
detainees were transferred from southern Florida to locations with few legal
230
resources, in particular resources to communicate with Creole-speaking detainees.
The court emphasized that these individuals ―were removed from Miami, a city with
a substantial immigration bar as well as volunteer lawyers from various
organizations expressing an interest in representing these refugees‖ and sent ―to
remote areas lacking attorneys with experience in immigration law, or for that
231
matter, any attorneys at all willing to represent them.‖ Describing this large scale
transfer as ―a human shell game in which the arbitrary Immigration and
Naturalization Service has sought to scatter them to locations that, with the exception
of Brooklyn, are all in desolate, remote, hostile, culturally diverse areas, containing a
paucity of available legal support and few, if any, Creole interpreters,‖ the court
concluded that the detainees‘ statutory and regulatory right to counsel was
232
violated. As the court explained with a hint of exasperation, ―there are more
Miami attorneys listed as specialists in immigration law in the Miami telephone book
233
than there are attorneys in all of Mongolia County, (Morgantown) West Virginia.‖

227. See AILA/ICE Liaison Meeting Minutes 6 (Dec. 12, 2007), AILA InfoNet Doc. No.
08030662, (on file with author).
228. See Lassiter v. Dep‘t. of Soc. Serv., 452 U.S. 18, 28 (1981).
229. See Rios-Berrios v. INS, 776 F.2d 859, 863 (9th Cir. 1985) (finding that the INS failed to
give ―more than lip service to the right to counsel,‖ the court expressed concern that a non-LPR‘s
immigration hearing proceeded without ―provid[ing] the petitioner a reasonable time to locate counsel,
and permit counsel to prepare for the hearing‖); Nunez v. Boldin, 537 F. Supp. 578, 581 (S.D. Tex. 1982)
(explaining that ―prison officials must not only refrain from placing obstacles in the way of
communications between prisoners and their attorneys, but are obligated to affirmatively provide prisoners
with legal assistance,‖ including ―providing reasonable access to attorneys‖); Taylor, supra note 37, at
1679-80 (―[A]t least in some circumstances, transfers to remote facilities can unduly interfere with the
right to legal representation even when the transferred detainee has not yet retained a lawyer.‖).
230. See Louis v. Meissner, 530 F. Supp. 924, 926 (S.D. Fla. 1981).
231. See id.
232. See id. at 926, 927.
233. Id. at 926. The Ninth Circuit was similarly harsh in its condemnation of a transfer ―nearly
3,000 miles from his only friend in this country . . . combined with the unexplained haste in beginning
deportation proceedings, combined with the fact of petitioner‘s incarceration, his inability to speak
English, and his lack of friends in this country . . . .‖ Rios-Berrios, 776 F.2d at 863. A transfer under these
circumstances, the Court announced, ―demanded more than lip service to the right of counsel declared in
statute and agency regulations, a right obviously intended for the benefit of aliens in petitioner‘s position.‖
See id.; see also Perez-Romero v. INS, 940 F.2d 1535, 1991 U.S. App. LEXIS 19677, *7-*8, 1991 WL
153456, *3 (9th Cir. 1991) (unpublished) (holding that due process was violated where ―upon being taken
into custody petitioner was transported from Arizona to South Florida, thousands of miles from his family;
was in custody at all times; spoke only Spanish; was unfamiliar with this country and its legal procedures;

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In this instance, the district court was concerned not only with the mere fact that the
detainees were transferred, but that they were transferred from a region where
attorneys with immigration law training were plentiful to regions where there did not
exist a reasonable possibility that they could in fact secure representation if they so
desired.
Various commentators have made similar claims. Beginning from the
presumption that securing legal representation is inherently difficult when detained,
Margaret H. Taylor added, ―[y]et in countless individual cases, discretionary transfer
and scheduling decisions make it all the more difficult for detained aliens to locate
234
an attorney.‖
Similarly, Laura Rótolo of the Massachusetts chapter of the
American Civil Liberties Union criticized ICE‘s transfer to Texas of approximately
200 of 361 immigrants who were detained in a highly publicized raid in New
235
Bedford, Massachusetts. ―While Massachusetts has a well-organized community
of immigrant rights advocates who had put together a group of volunteer attorneys
ready to help,‖ she wrote in a memorandum to the Inter-American Commission on
236
Human Rights, ―Texas had no such organization.‖
Indeed, in 1982 a Texas federal district court recognized the peculiarities of
an immigration prison in an isolated part of South Texas—an area where, according
to the court‘s findings of fact, ―[t]here are no legal clinics in the area available to
represent detainees in deportation proceedings. Those wishing to have legal
representation must rely on a few private attorneys or, to a limited extent, the
237
services of legal aid attorneys.‖ Examining claims raised by Central American
refugees that their due process right to access counsel was impinged by the then
INS‘s chosen location in the small town of Los Fresnos, the district court displayed
no hesitation in ordering large-scale changes to the prison operations policy. Among
other factors to consider when determining the reasonableness of access to attorneys,
the court held, ―are the location of the facility with respect to attorney availability,
size of the detainee population to be served, and what, if any, legal assistance is
238
being provided.‖ Though the court did not go so far as to condemn the entire
prison due to its isolated location as unconstitutional, it did ―[c]onsider[] the
remoteness of the Los Fresnos detention facility‖ in ordering various remedies,
239
including nighttime attorney visitation hours.
The court concluded that ―the
remote location of the facility also makes it necessary for those attorneys that do
represent detainees to be allowed to use designated paralegals and other legal
assistants to help them with some of the routine tasks that must be done at the
240
detention center in the course of their representation of their clients.‖ Based on
these concerns about the difficulty of accessing counsel, the court granted temporary
and was forced to seek counsel by telephone during the Christmas-New Year‘s season.‖).
In contrast, another federal district court refused to grant an injunction reversing transfer from
New York to El Paso, Texas because ―No showing has been made that petitioners are unable to obtain
counsel in the El Paso, Texas area if they so desire; indeed, it appears that competent counsel are available
there.‖ See Ledesma-Valdes v. Sava, 604 F. Supp. 675, 682 (S.D.N.Y. 1985).
234. See Taylor, supra note 37, at 1652.
235. See Rótolo Memorandum, supra note 22, at 4.
236. Id.
237. See Nunez v. Boldin, 537 F. Supp. 578, 581, 582 (S.D. Tex. 1982).
238. Id.
239. Id.
240. Id.

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injunctive relief prohibiting the INS from deporting citizens of El Salvador and
241
Guatemala prior to informing them of their right to apply for asylum.
This analysis is not to suggest that the Due Process Clause requires the
federal government to detain individuals where there exists the greatest likelihood to
242
obtain counsel. Due process certainly does not require that. There is a vast gulf,
though, between requiring detention where representation is most likely and allowing
detention transfers to facilities where representation is realistically unlikely—that is,
where the ability to obtain counsel is not itself ―meaningful‖ as that term is
243
ordinarily defined— and where it is not near the site of initial apprehension.
Webster‘s Dictionary defines ―meaningful‖ as ―full of meaning, significance, or
244
value; significant.‖ Justice John Paul Stevens suggests a more stringent definition,
at least as used in the First Amendment context of an individual‘s right to
communicate with the government. Stevens suggests that that the term requires
245
―something more than an exercise in futility.‖ Whether using the more permissive
dictionary definition or Stevens‘ more narrow construction in the First Amendment
context, the right to counsel in the deportation context cannot be considered
meaningful if there are few or no attorneys available for detainees to contact—who
are close enough to the prison to actually meet with and represent the detainee.
Once immigration detainees have secured counsel, due process requires that
246
they be detained under conditions that allow reasonable access to counsel. The
Ninth Circuit, in distinguishing the circumstances of the plaintiffs in its case,
explained that ―[t]he key factor present in each of these [distinguishable] cases
showing a constitutional deprivation is the existence of an established, on-going
attorney-client relationship,‖ suggesting that an existing attorney-client relationship
247
is critically important to the due process calculus.
A federal district court in
241. See id.
242. See Gandarillas-Zambrana v. BIA, 44 F.3d 1251, 1256 (4th Cir. 1995) (holding that a
LPR ―does not have the right to be detained where his ability to obtain representation is the greatest‖).
Importantly, Gandarillas-Zambrana actually waived his right to counsel ―by appearing without counsel
when the hearing resumed and stating that he would prefer to represent himself rather than take more time
to seek counsel.‖ See id.
243. The Due Process Clause surely does not require the government to detain LPRs where
they are likely to be in the most favorable position whether regarding access to counsel or anything else.
See Market St. Railway Co. v. Railroad Commission of State of California, 324 U.S. 548, 567 (1945)
(explaining that the Due Process Clause does not require the government to protect economic value of a
regulated industry). The Clause might, however, prohibit the government from affirmatively acting in
such a way as to adversely impact a private actor‘s market position. In Mayer v. City of Chicago, for
example, the Court explained that, in the context of a criminal appeal, the Due Process Clause and Equal
Protection Clause recognize a ―flat prohibition against pricing indigent defendants out of as effective an
appeal as would be available to others able to pay their own way.‖ See 404 U.S. 189, 196-97 (1971)
(discussing Griffin v. Illinois, 351 U.S. 12 (1956)); see also Market St. Railway Co., 324 U.S. at 567
(concluding that the Due Process Clause did not require the government to protect a private company‘s
market value, but that it ―has been applied to prevent governmental destruction of existing economic
values.‖). Though cases involving criminal appeals and a state agency‘s regulation of a private business
are, of course, markedly dissimilar to LPRs transferred by a federal government agency, these cases do
nonetheless suggest a useful analogy for the interaction of the Due Process Clause and market forces.
244. WEBSTER‘S ENCYCLOPEDIC UNABRIDGED DICTIONARY OF THE ENGLISH LANGUAGE 888
(new rev. ed. 1996).
245. See Minnesota State Bd. v. Knight, 465 U.S. 271, 308-09 (1984) (Stevens, J., dissenting).
246. See Taylor, supra note 37, at 1678 (explaining that ―courts actively interven[e] to protect
INS detainees‘ access to attorneys‖).
247. Comm. of Central Am. Refugees v. INS, 795 F.2d 1434, 1439 (9th Cir. 1986), amended
by, 807 F.2d 769 (9th Cir. 1987) (affirming district court‘s denial of preliminary injunction).

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Oregon, for example, found that a transfer order infringed an existing attorney-client
relationship where the immigrant was represented by a non-attorney legal advisor at
248
deportation proceedings in Portland and sent to a prison in El Centro, California.
In that case, the district court issued a temporary restraining order demanding that
249
the INS return the immigrant to Portland. In another case, a federal district court in
Washington ―issued a preliminary injunction enjoining the INS from transferring the
aliens out of the area because ‗the established, on-going attorney-client relationship
250
would effectively be destroyed.‘‖
Notably, this case involved exclusion
251
proceedings where due process protections are significantly less stringent than in
deportation hearings. Other courts have suggested that they might have found that
due process had been violated had an existing attorney-client relationship been
252
shown.
This concern for the attorney-client relationship reflects a deep commitment
to the ―great social value‖ of legal representation that pervades this nation‘s
253
jurisprudence across all legal specializations. Deborah Rhode, for example, argues
that ―the attorney-client relationship has long been recognized to serve crucial First
254
Amendment values of expression and association,‖ rights to which LPRs are fully
entitled.
It also reflects a common-sense understanding of reality that adequate legal
representation is significantly impeded by geographic distance, especially when
255
compounded by the inherent obstacles of detention. Adequate legal representation
requires preparation and preparation necessarily requires regular communication

248. See Bocanegra-Leos v. Dahlin, No. 78-313 (D. Or. Apr. 7, 1978) (unpublished)
(discussed in Comm. of Central Am. Refugees, 795 F.2d at 1438-39). Non-attorneys who are accredited by
the Board of Immigration Appeals may represent non-citizens in Immigration Court and before the Board.
See 8 C.F.R. § 292.1(a)(4).
249. See Bocanegra-Leos, No. 78-313 (discussed in Comm. of Central Am. Refugees, 795
F.2d at 1438-39).
250. See Chavez-Galen v. Turnage, No 80-485T (W.D. Wash. Feb. 3, 1981) (unpublished)
discussed in Comm. of Central Am. Refugees, 795 F.2d at 1439).
251. See Chavez-Galen, No 80-485T (discussed in Comm. of Central Am. Refugees, 795 F.2d
at 1439).
252. See, e.g., Comm. of Central Am. Refugees, 795 F.2d at 1439 (―In the matter before this
court, the alien class requested an injunction to preclude a transfer notwithstanding the fact that no
attorney-client relationship has been established.‖); Avramenkov v. INS, 99 F. Supp. 2d 210, 214 (D.
Conn. 2000) (―the Petitioner‘s contention that the impending transfer interferes with his existing attorneyclient relationship . . . is without merit [because] [h]e has failed to provide evidence that he has an ongoing relationship with his attorney or that a transfer to Louisiana would effectively destroy that
relationship.‖).
253. See Rebecca Fialk & Tamara Mitchel, Jurisprudence: Due Process Concerns for the
Underrepresented Domestic Violence Victim, 13 BUFF. WOMEN‘S L.J. 171, 183 (2005); see also Sharper
Image Corp. v. Honeywell Intern., Inc., 222 F.R.D. 621, 643 (N.D. Cal. 2004) (―[I]n patent litigation
between competitors, disabling a defendant from having a confidential relationship with its lead trial
counsel about matters central to the case would cause considerable harm to the values that underlie the
attorney-client privilege and the work product doctrine.‖); Eduardo M. Gonzalez, Tort Law: A Discussion
of the Arizona Supreme Court’s 2007-2008 Decisions, 41 ARIZ. ST. L.J. 553, 556-57 (2009) (arguing, in
the context of tort law, that the attorney-client relationship ―protects societal interests‖ and ―protects
constitutional rights such as the ‗right to assistance of counsel‘) (quoting Webb v. Gittlen, 174 P.3d 275,
367 (Ariz. 2008)).
254. Deborah Rhode, Access to Justice: Connecting Principles to Practice, 17 GEO. J. LEGAL
ETHICS 369, 389 (2004).
255. See Biwot v. Gonzales, 403 F.3d 1094, 1099 (9th Cir. 2005) (describing incarceration as
a ―barrier‖ to obtaining counsel).

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between attorney and client.
Indeed, Justice William J. Brennan, in a case
concerning the Sixth Amendment‘s right to counsel, explained that to prepare an
effective defense ―the attorney must work closely with the defendant in formulating
257
defense strategy.‖ Though LPRs in immigration proceedings do not have a Sixth
Amendment right to counsel, there is no logical reason why the Fifth Amendment‘s
right to counsel would require any less of a working relationship between attorney
and client to render it meaningful.
To believe that detained individuals can maintain sufficient contact with
their attorneys so as to prepare their defense when detained at a great distance from
their attorneys misunderstands both ICE‘s detention practices and the nature of the
attorney-client relationship. Though ICE‘s current detention standards require that
facilities provide ―reasonably priced telephone services‖ and make allowances for
free calls to ―[l]egal representatives, to obtain legal representation, or for
consultation when subject to expedited removal,‖ these standards are little more than
258
aspirations.
To date, the Obama Administration has refused to make these
259
standards legally enforceable. Compliance with these standards, therefore, results
only from the government‘s good graces. As Rótolo, the Massachusetts immigrants‘
rights advocate, explained, ―[o]nce detainees are moved far from their places of
residence, they may lose contact with attorneys representing them in their cases. Inperson visits may become impossible and phone calls may become prohibitively
260
expensive.‖ Without face-to-face contact and with difficulties in placing expensive
telephone calls, detainees struggle to merely communicate with counsel.
In sum, there is widespread acknowledgement that transfers severely disrupt
a detainee‘s contact with legal counsel. A right to counsel that is impeded by severe
communication obstacles presented by DHS‘s transfer procedure or by the fact that
there are no attorneys available to contact is nothing more than an exercise in
261
futility.
For the right to counsel to be meaningful, as the Eldridge Court
262
requires,
detainees must have reasonable access to potential and existing
263
counsel. Not long ago the Ninth Circuit held as much. In a case involving an
individual who sought an attorney, the detainee was transferred from one

256. See, e.g., Patrick Fischer, Best Practices for Working with Financial Industry Clients,
ASPATORE, Apr. 2009, at 2 (―In order to establish a positive client-attorney relationship, it is important to
get the client involved in the process from the start, and keep them fully apprised of progress, dates, and
other issues.‖); Laurie Hauber, Complex Projects in a Transactional Law Clinic, J. AFFORDABLE
HOUSING & COMMUNITY DEV. L. 247, 254 (2009) (―Frequent updates and communications with the client
also are critical.‖).
257. Morris v. Slappy, 461 U.S. 1, 21 (1983) (Brennan, J., concurring).
258. See ICE Detention Standards, supra note 172, at § Telephone Access, V.A.2, E.
259. See Nina Bernstein, U.S. Rejects Call for Immigration Detention Rules, N.Y. TIMES, July
28, 2009, at A17.
260. See Rótolo Memorandum, supra note 22, at 4. Malik Ndaula, a former immigration
detainee, supported Rótolo‘s comments when he wrote, ―So, few immigrants actually get an attorney and
even those who have an attorney have a hard time providing them with useful information and documents
while they are being bounced from prison to prison around the country.‖ See Ndaula, supra note 1, at 277.
261. See Minnesota State Bd. v. Knight, 465 U.S. 271, 308-09 (1984) (Stevens, J., dissenting)
(discussing the ―meaningful opportunity to express one‘s views‖ under the First Amendment).
262. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380
U.S. 545, 552 (1965)).
263. See Note, supra note 167, at 2008 (―In order for the due process right to counsel to be
meaningful . . . it requires more than that an alien have the chance to have an attorney speak for her at a
hearing. The alien must have a reasonable opportunity to obtain and consult with counsel.‖).

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immigration prison to another, then was denied additional time to find an attorney.
The Ninth Circuit advised, ―[t]o infuse the critical right to counsel with meaning, we
have held that [immigration judges] must provide aliens with reasonable time to
264
locate counsel and permit counsel to prepare for the hearing.‖
Unlike Lassiter, the added cost to the government would not include paying
immigrants‘ attorneys, as immigrants in deportation proceedings must bear that cost.
Moreover, in light of Lassiter, these additional costs are not sufficiently weighty to
overcome LPRs‘ interest in properly adjudicated deportation proceedings. Though
ICE would surely see the cost of detaining LPRs increase, such might be the burden
of ensuring that deportation proceedings are fundamentally fair.
E. Harmless Error
Some circuits have added a final prong to the procedural due process
265
analysis—a required showing of prejudice. The Eighth Circuit explained, ―an error
cannot render a proceeding fundamentally unfair unless that error resulted in
266
prejudice.‖ Prejudice, the court added, ―exists where defects in the deportation
proceedings ‗may well have resulted in a deportation that would not otherwise have
267
occurred.‘‖
In contrast, other circuits do not require an additional prejudice
268
finding.
A prejudice requirement gives DHS the power to render access to counsel
impressively difficult if not impossible—as it indeed does by detaining people in
isolated locations—because the burden is on the immigrant to show that an
erroneous order of deportation was entered. Individuals who are untrained in the
machinations of legal processes and immigration proceedings do not easily
accomplish such a task, yet are forced to navigate the immigration law ―maze.‖ That
they are forced to do so without meaningful opportunity to access counsel due to
DHS‘s transfer procedure leaves them with little chance of having the wherewithal
or ability to successfully argue that their deportation order was incorrectly entered.
Detained LPRs‘ knowledge that they should argue prejudice and their
ability to do so in the language and style required by legal proceedings is not
reflective of the merits of prejudice arguments. Indeed, immigration law‘s
complexity leaves even the most seasoned of immigration law specialists struggling
to understand a particular individual‘s likelihood of remaining in the United States.
This is especially true of LPRs facing deportation as a result of a criminal violation.
It should not surprise anyone that unrepresented LPRs detained in isolated prisons do
not have the nuanced understanding of immigration law necessary to show that their
proceedings resulted in a deportation order that would not have occurred had counsel
264. Biwot v. Gonzales, 403 F.3d 1094, 1098-99 (9th Cir. 2005).
265. See Taylor, supra note 37, at 1681 & n.122 (explaining that the BIA and Fourth and
Ninth Circuits have adopted a prejudice requirement, while the Second and Seventh Circuits have rejected
it); Kaufman, supra note 179, at 132 n.127 (annotating cases from six circuits and one federal district
court).
266. United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995); see Frech v. U.S. Atty
Gen., 491 F.3d 1277, 1281 (11th Cir. 2007); Delgado-Corea v. INS, 804 F.2d 261, 263 (4th Cir. 1986);
Patel v. INS, 803 F.2d 804, 807 (5th Cir. 1986); Burquez v. INS, 513 F.2d 751, 754 (10th Cir. 1975).
267. Torres-Sanchez, 68 F.3d at 230 (quoting United States v. Santos-Vanegas, 878 F.2d 247,
251 (8th Cir. 1989)); see Mohamed v. TeBrake, 371 F. Supp. 2d 1043, 1048 (D. Minn. 2005).
268. See, e.g., Montilla v. INS, 926 F.2d 162, 169 (2nd Cir. 1991); Castaneda-Delgado v. INS,
525 F.2d 1295, 1300 (7th Cir. 1975); Yiu Fong Cheung v. INS, 418 F.2d 460, 464 (D.C. Cir. 1969).

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been available.
Consequently, where a harmless error rule is required, prejudice should be
presumed where LPRs are transferred under circumstances that render their ability to
access the ears of trained counsel as mere fantasy. Reflecting this position, the Ninth
Circuit held that a pro se asylum applicant was prejudiced where she clearly ―did not
understand the procedures in which she was engaged or the implications of her
269
answers.‖ Given the increased complexity of immigration law, especially as it
intersects with criminal law, courts should presume that the individuals who are
called to appear in immigration courts do not understand the procedures used or the
implications of their answers. The right to counsel is an integral component of the
270
procedural due process protections afforded LPRs in deportation proceedings.
Denial of that right to individuals who are transferred to a facility that is far from the
social networks that they know how to navigate is inherently prejudicial.
A fairer approach would eliminate the harmless error requirement entirely.
The right to counsel is simply so fundamental to fair adversarial proceedings that its
abrogation irredeemably taints the entire proceeding. As the Seventh Circuit
explained, the right to counsel ―would be eviscerated by the application of the
271
harmless error doctrine.‖ The complexity of immigration law and the enormous
risk at stake in removal proceedings suggests that a harmless error rule is
inappropriate in the context of LPRs denied their right to counsel. Though removal
proceedings are technically civil proceedings, they always carry the risk, in the
words of Justice Louis D. Brandeis writing for a unanimous Supreme Court, of
272
losing ―all that makes life worth living.‖ This is particularly true for LPRs, many
of whom have long-established ties to this country, including spouses, children,
siblings, and all of the other social details of contemporary life. Moreover,
immigration law violations can serve as the basis for criminal prosecutions, thus
273
amplifying the potential risk of erroneously adjudicated immigration proceedings.
Eliminating the prejudice requirement has the added benefit of eliminating the need
for subsequent courts—for example, those hearing criminal prosecutions that arise
from administrative findings of immigration law violations—to conduct an
inherently predictive inquiry of what might have happened had counsel been
involved in the underlying immigration proceeding. Courts could forego having to
determine whether counsel could have successfully challenged an allegation of
removability or sought Cancellation of Removal, Withholding of Removal,
274
Temporary Protected Status, or another form of relief.

IV. WHAT TO DO: PRACTICAL OPTIONS FOR PROTECTING DUE PROCESS
Despite the widespread use of transfers and the systematic abuse of LPRs‘
269. Jacinto v. INS, 208 F.3d 725, 735 (9th Cir. 2000).
270. See Castaneda-Delgado, 525 F.2d at 1302.
271. See Castaneda-Delgado v. INS, 525 F.2d 1295, 1302 (7th Cir. 1975).
272. See Ng Fung Ho v. White, 259 U.S. 276, 285 (1922).
273. See, e.g., INA § 275(a), 8 U.S.C. § 1325(a) (mandating up to two years imprisonment for
unlawful entry or attempted entry into the United States); § 275(c), § 1325(c) (imposing up to five years
imprisonment for fraudulently marrying for the purpose of evading an immigration law provisions); §
275(d), § 1325(d) (mandating no more than five years imprisonment for ―knowingly establish[ing] a
commercial enterprise for the purpose of evading any provision of the immigration laws‖).
274. See, supra notes 196-200 and accompanying text.

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due process rights in the modern immigration detention apparatus, hope remains.
Systemic policy changes and individualized due process-based challenges could
introduce reason into immigrant detention.
A. Systemic Options for Reform
A policy shift implementable by DHS would go a long way to protecting
the procedural due process rights of LPRs. As an executive branch unit, DHS and the
immigration courts can change their internal policies without congressional approval
or additional legislation. Finally, policy changes that result in fewer detainees have
the promised grace of saving money. The options presented here can be grouped into
two broad categories: detain fewer people and hold those who are detained closer to
home.
1. Detain Fewer People
Rather than detain the astronomical number of individuals in removal
proceedings that has become the norm in recent years, DHS should ameliorate its
impact on the due process rights of LPRs by detaining fewer people. ICE already
operates three Alternatives to Detention (ATD) programs—Intensive Supervision
Appearance Program (ISAP), Enhanced Supervision Reporting (ESR), and
275
Electronic Monitoring (EM). According to a report released by Dora Schriro,
President Obama‘s first appointee charged with reviewing and reforming immigrant
detention:
ISAP, which has a capacity for 6,000 aliens daily, is the most
restrictive and costly of the three strategies using telephonic
reporting, radio frequency, and global positioning tracking in
addition to unannounced home visits, curfew checks, and
employment verification. ESR, which has a capacity for 7,000
aliens daily, is less restrictive and less costly, featuring telephonic
reporting, radio frequency, and global positioning tracking and
unannounced home visits by contract staff. EM, which has a
capacity for 5,000 aliens daily, is the least restrictive and costly,
relying upon telephonic reporting, radio frequency, and/or global
276
positioning tracking.
Combined, these three ATD programs included just fewer than 20,000
people in October 2009 when Schriro‘s report was released. DHS could and should
expand its existing ATD programs. According to Schriro, greater reliance on ATD is
277
prohibited in part by funding limitations. Funding concerns, though certainly not a
trivial matter, are of the least burdensome variety in that they do not implicate the
need for legislative enactments or run much risk of judicial intervention.
Moreover, expansion of ATD fits neatly within INA § 236(c)—the socalled mandatory detention provision that courts, including the Board, have begun to

275. SCHRIRO, supra note 113, at 20.
276. Id.
277. See id.

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interpret more narrowly than DHS. Section § 236(c) requires DHS to ―take into
custody‖ individuals who fall within the enumerated categories of deportability and
279
inadmissibility. Importantly, the statute requires ―custody‖ rather than detention.
In the context of habeas corpus petitions, ―any alien whose freedom of movement is
limited by an order of deportation may be considered sufficiently restrained to be
280
considered ‗in custody.‘‖
As such, DHS could satisfy its statutory obligation
through non-detention custody. Indeed, expanding ATD programs would be in line
with the recent trend of penal custody in working away from an intense reliance on
281
imprisonment.
2. Detain People Near Home
To ameliorate the constitutional concerns implicated by its transfer practice,
DHS could simply elect to detain LPRs closer to where they have made their
282
homes.
Under its authority to detain individuals ―in appropriate places of
283
detention,‖ DHS could elect to locate sufficient prisons near metropolitan areas
where legal resources are more abundant. Several members of Congress recognized
the benefit of doing this. House Resolution 1215, introduced in the 111th Congress
by Representative Lucille Roybal-Allard and cosponsored by 60 other members,
would require detention facilities to be located within 50 miles of a city ―in which
there is a demonstrated capacity to provide competent legal representation by
nonprofit legal aid organizations or other pro bono attorneys to detained noncitizens

278. See Maria Theresa Baldini-Potermin, Mandatory Detention: It’s Time to Return the
Authority to Redetermine Custody to the Immigration Court, 86 No. 46 INTER. REL. 2909, 2909 (Dec. 7,
2009); see also Saysana v. Gillen, 590 F.3d 7, 11-12 (1st Cir. 2009) (holding that § 236(c) applies only to
release from custody for an offense specified in the INA); Ortiz v. Napolitano, 667 F. Supp. 2d 1108, 1111
(D. Az. 2009) (determining that § 236(c) is inapplicable to offenses committed before October 8, 1998,
the day the provision became effective); Matter of Garcia-Arreola, 25 I&N Dec. 267, 269 (BIA 2010)
(interpreting the mandatory detention provision to apply only to individuals released from custody after
October 8, 1998 and only when that custody was for an offense enumerated in § 236(c)).
279. See INA § 236(c).
280. El-Youssef v. Meese, 678 F. Supp. 1508, 1515 (D. Kan. 1988). The El-Youssef Court
explained: ―In 1963, the ‗in custody‘ requirement of habeas corpus proceedings was broadly interpreted to
include any significant restraint on liberty, including parole. It also has been interpreted to include a
person who is released on his own recognizance pending trial.‖ Id. at 1515 n.4 (citing Hensley v.
Municipal Court, 411 U.S. 345, 351 (1973) and Jones v. Cunningham, 371 U.S. 236, 243 (1963)). Other
courts have similarly defined ―custody‖ for habeas purposes. See, e.g., Patel v. U.S. Atty. Gen., 334 F.3d
1259, 1263 (11th Cir. 2003) (―There must be a significant restraint on the petitioner‘s liberty to satisfy this
―custody‖ requirement.‖); United States v. Ayala, 894 F.2d 425, 430 n.9 (D.C. 1990) (habeas petitioner
who was on parole was in ―custody‖); Kolski v. Watkins, 544 F.2d 762, 763 n.2 (5th Cir. 1977) (personal
recognizance ―of course, is sufficient to establish ‗custody‘ for the purposes of federal habeas corpus
relief‖); Wapnick v. United States, 406 F.2d 741, 742 (2nd Cir. 1969) (―parole status is ‗custody‘ within
the meaning of [habeas statute]‖).
281. See, e.g., Franklin E. Zimring, Penal Policy and Penal Legislation in Recent American
Experience, 58 STAN. L. REV. 323, (2005) (―The period of consecutive decades of growth in the rate of
imprisonment has already ended….‖).
282. Cf. NYC KNOW YOUR RIGHTS PROJECT, supra note 111, at 15 (recommend[ing] that the
Varick Facility [in Manhattan] be used to house detainees with family and other ties to the New York City
community on a longer term basis. Family and community support is often a determinative factor in a
detainee‘s level of access to documents and information in support of his case. Additionally, detainees
already consulting with attorneys based in the New York area should be kept at Varick for the duration of
their proceedings.‖).
283. INA § 241(g).

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284

….‖
DHS should not wait for Congress to act on Roybal-Allard‘s proposal.
Rather, it should comply with its mandate to detain individuals with an acute
awareness of the accessibility of counsel near existing and future prisons.
B. Individualized Due Process Defense to Criminal Prosecution
In turning to the Due Process Clause to inject a semblance of fairness into
the country‘s immigrant detention regime, an important question lingers: How can
the Due Process Clause‘s right to counsel take on meaning when, as I have argued,
counsel are not available to represent detainees in remote prisons? It would be naïve
to expect pro se detainees to lodge a vigorous due process challenge. Instead, the
best possibility is to use the federal government‘s increasing prosecution of
immigration offenses as federal crimes as an unlikely bulwark against the denial of
access to counsel.
One of the few bright spots in the criminalization of immigration offenses is
that the more robust Sixth Amendment right to counsel applies to criminal
285
prosecutions for immigration-related acts such as illegal reentry. Unlike the Fifth
Amendment right to counsel discussed at length in this article, the Sixth Amendment
right to counsel provides a criminal defendant the right to have an attorney at every
286
critical stage of the trial process.
These criminal defense attorneys—whether
federal public defenders, privately retained attorneys, or appointed counsel—are in
the best position to raise a due process challenge to the underlying removal
proceeding. Because of the severe consequences of criminal prosecutions, federal
courts have long recognized the right to challenge removal proceedings where that
287
process forms the basis of a criminal prosecution.
As such, an attorney
representing an individual charged with the federal crime of illegal reentry—a
serious offense for which a two-year term of imprisonment in a federal penitentiary
288
may be imposed —can and, I believe, should challenge the underlying removal
proceeding for a colorable due process challenge where the immigrant was deported
after having been transferred to a remote immigration prison.

V. CONCLUSION
Countless advocates have turned to the Due Process Clause as a source of
protection against the deprivations of liberty caused by governmental action. The
Clause‘s ancient roots in the quest for freedom from monarchical control and its
more recent evolution as a powerful limit to the reaches of governmental authority
lend reason to this reliance. As DHS continues its policy of detaining hundreds of
thousands of people and transferring all but a handful of those from one prison to
284. Immigration Oversight and Fairness Act, H.R. 1215, 111th Congress, § (3)(b)(4)(D).
285. INA § 276(a), 8 U.S.C. § 1326(a). Other immigration-related criminal offenses that
require a prior removal are enumerated in INA § 276(b).
286. See Van v. Jones, 475 F.3d 292, 297-311 (6th Cir. 2007) (reviewing the Supreme Court‘s
critical stage jurisprudence).
287. See United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 (1987); United States v.
Luna, 436 F.3d 312, 317 (1st Cir. 2006) (explaining that Mendoza-Lopez was codified at INA § 276(d), 8
U.S.C. § 1326(d)); see also 6 ROTUNDA & NOWAK, TREATISE ON CONST. L. § 22.7(b) (4th ed.) (―An alien
who is criminally prosecuted for illegal entry following an earlier deportation may assert in the criminal
proceeding the invalidity of the underlying deportation order.‖).
288. INA § 276(a), 8 U.S.C. § 1326(a).

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another in a nationwide game of immigration prison hopscotch, immigrants‘ rights
advocates, Congress, and DHS would do well to consider the Due Process Clause‘s
limitations on these transfers and to help LPRs remain in regions where they might
actually have access to trained legal counsel.